Don't lose sleep over U.S. e-discovery nightmares

What, exactly, is the difference between e-discovery laws in Canada and the U.S.? Two lawyers highlight the basics for those of us who don't work in the legal department.

E-discovery has been a hot topic ever since changes made to the U.S. Federal Rules of Civil Procedure broadened the scope of electronic evidence back in 2006.

But Canadian IT departments shouldn't lose sleep over e-discovery nightmares taking place in the U.S., according to one lawyer with experience practising on both sides of the border.

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What, exactly, is the difference between e-discovery laws in Canada and the U.S.? Two lawyers highlight the basics for those of us who don't work in the legal department.

E-discovery has been a hot topic ever since changes made to the U.S. Federal Rules of Civil Procedure broadened the scope of electronic evidence back in 2006.

But Canadian IT departments shouldn't lose sleep over e-discovery nightmares taking place in the U.S., according to one lawyer with experience practising on both sides of the border.

"The sky is not falling, No. 1," said Stephen Maddex, associate in the Commercial Litigation Group at Lang Michener LLP in Ottawa, who is a member of the bar in Ontario and Texas.

"No. 2, organization is key," he said. "The more businesses do get organized, the simpler it all becomes."

Broadly speaking, there are two major differences between general Canadian practice and the U.S. federal rules, said Maddex.

One is the scope of discovery. "In the U.S., you can ask for pretty much anything, which is why e-mail has become such an important problem there," he said. But Canadians "don't have that same problem because the scope is narrower."

For example, in the U.S., a company may be asked to file through its entire database and produce everything it has, which could be billions of e-mail messages, he said. "The cost to go through that and figure out what you need and what you don't need to provide is extremely expensive," he said.

Second is the duty to disclose. "In the U.S., parties have the right to compel the other side to produce whatever they ask for, whereas here in Canada, by and large, litigants have an affirmative duty to search their own records for themselves and produce what they think is relevant," he said.

Canadian businesses and individuals are required to keep certain records, but this is governed by specific legal requirements like tax laws, he said. "Other than that, you have no real obligation to keep anything," he said.

A dispute between Air Canada and WestJet Airlines back in 2006 was described as the largest case of corporate espionage in Canadian history, said Maddex. Thousands of e-mail messages were exchanged, but that "would be like afternoon tea" in the States, he said.

The difference between e-discovery laws in Canada and the U.S. is "kind of like the difference between Canadian English and British English," said Maddex. "The rules are so totally different that it is often not fully appreciated here."

Thomas Sutton, a litigation partner at McCarthy Tétrault LLP in Toronto, takes a different spin. "I always see the fact that the onus is on the parties themselves ... makes it harder," he said.

"In Ontario, parties have an obligation to disclose all documents that are relevant to issues in the action without being asked by the other side. My understanding (of the U.S. federal rules) is that the opposing parties often make a document request and then you produce in response to those requests," he said.

E-discovery laws in Canada and the U.S. "are fundamentally the same," said Sutton. "The same principles apply, but they have to take into account the slight variances in our procedure."