Over 90% of documents are created and stored electronically. This is no longer a peculiarity of litigation. Litigants must have a readiness plan or they will be faced with an expensive and time consuming scramble to meet production demands.

Document production has long been at the core of the litigation process, and while the specific court rules have changed over time [the change in 2010 from Rule 26(1) to Rule 7-1(1)], document production in BC has always aimed to equip parties with key information while streamlining litigation.¹

Over-disclosing documents (i.e. sending the other party thousands of unnecessary documents) can be considered as bad as failing to disclose key documents. In this already contentious context of document production, producing electronic documents can create challenges:

Sheer volume – electronic records are easily created, widely distributed and exist in many copies. Electronic records also exist on various devices, servers, local hard drives, iPads, iPhones and smartphones.

Electronic documents contain more information than paper documents – metadata embedded in an electronic record includes a history of the creation and revision of the record.

Electronic documents are treated more casually than the composition of a paper document or formal letter – companies who do not have a document retention policy often overlook the importance of preserving electronic documents.

In addition to the inconvenience of having to meet a production order in a short time frame, there are additional risks of not having a reliable system in place:

• Destroying documents a company is legally required to retain. A multitude of retention requirements exist in different industries. Inaccurate storage could mean that a record is destroyed pursuant to the wrong retention period.
• Exposure to claims that the company improperly destroyed documents. If a company does not have a policy regarding the retention of documents, a court will be suspicious if it turns out that a company has destroyed a particular document or a document is missing.
• Retaining client records that a company is legally required to destroy, such as an employee’s or customer’s personal data like social insurance numbers, credit card numbers, health data and financial records.

In Air Canada v. West Jet Airlines (2006) 267 D.L.R. (4th) 483 (On. S. Ct.), 75,000 electronic documents were the subject of a production order. Air Canada said that it would take too long and cost too much to review each document one by one. The court disagreed and ordered Air Canada to review each of the 75,000 documents to determine which documents were privileged (not disclosable) and which relevant documents could be disclosed. One lesson in that case was that no company should have a batch of 75,000 documents and not know what they are.

In Gardner v. Viridis Energy Inc. 2014 BCSC 204 at para. 15, the court found that Viridis failed to list relevant documents and that an organized search of their hard drives would likely produce additional relevant documents. In their production of additional documents, Viridis demonstrated to the court that they had applied a consistent keyword search and by doing so, made reasonable efforts to comply with the court’s order. The court agreed.

These are but two examples, but it is clear that where electronic document production is concerned, the stakes are high and the corresponding consequences are becoming more severe. Litigants can circumvent damaging results by creating and implementing a document retention system that will also act as a litigation readiness plan. Waiting until litigation to address discovery obligations in the digital age is ill advised. It is imperative that litigants implement an effective e-discovery management process to deal with all potential electronic evidence.

^{The BC Rules are informed in part by the Sedona Canada Principles, which have attempted to promote a common approach to electronic discovery rooted in proportionality and reasonableness.}↩