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CCCA_V7No1_Col-McCarthys-FIN_CCCA 2/12/13 5:59 PM Page 57 Legal Update – McCarthy Tétrault LLP Protecting against hard drive production orders Another reason for compliance with ongoing discovery obligations. By Eric S. Block and Brooke MacKenzie t is well-known that electronic informa- either intentional or inadvertent. In production. In that case, the Defendant Ition is discoverable in litigation, and that Chadwick v Canada, 2008 BCSC 851, leave had found relevant documents on its the overriding principles limiting discovery to appeal ref’d 2008 BCCA 346, the court computers after having already delivered on the basis of relevance and proportionali- ordered that the plaintiff’s hard drive be its affidavit of documents, and disclosed ty continue to apply in the e-discovery con- produced after a Freedom of Information these documents to the Plaintiff. The text. Your business should also be aware, Request revealed a relevant document that Plaintiff argued on the motion that however, that failure to comply with pro- had been overwritten. In Spar Aerospace because documents were uncovered duction obligations could subject your Limited v Aerowerks Engineering,2007 ABQB after the fact, there were likely even organization to an order to produce your 543, aff’d 2008 ABCA 47, hard drive pro- more undisclosed documents on the entire hard drive. duction was ordered after the defendants Defendant’s computer. The Court dis- An order to produce a hard drive may failed to produce an adequate affidavit of agreed, dismissing the motion. Even pose a real threat to a business.While hard documents. The Court in Spar Aerospace though not all documents were disclosed drives contain a great deal of information stated two key principles: in the first instance, the Defendant had that will be relevant to the litigation at 1. Parties should list on their affidavit of made appropriate efforts to meet its dis- hand,they will also contain documents and documents all relevant records that have closure requirements on an ongoing basis. data that is irrelevant, confidential and pri- been deleted, and must make reasonable 2. Ensure your organization has docu- vate. In contentious litigation — between efforts to produce those deleted records; ment retention systems in place. In business competitors,for example — it may 2. Where a party satisfies the court that Chadwick, a production order was grant- be very important to protect this informa- required disclosure has not been made ed because relevant documents had been tion from being exposed. and the missing disclosure is likely stored overwritten. If it comes to light that rel- on a hard drive, a court will normally evant documents have been deleted, When will a court order production grant access to the hard drive itself. whether intentionally or inadvertently, of a hard drive? Although the order frequently requires a your organization may be open to attack Courts begin from the premise that a hard party to produce the hard drive to an inde- on the basis that not all relevant docu- drive is an “electronic filing cabinet” that pendent expert, this is not universally the ments have been found and produced. contains many records,only some of which case (see e.g.SparAerospace and Hummingbird 3. If facing a motion for a hard drive are relevant and material. Just as the oppos- v Mustafa et al, [2007] OJ No 3624). production order, seek to limit its ing party in litigation is not entitled to Production of an entire hard drive to an scope. The case law demonstrates that search through your office drawers, a hard opposing party can result in headaches not parties can limit these orders through drive is not ordinarily subject to produc- just for the legal department, but for the search terms, document types, or date tion.There is a long line of cases, however, entire business. range to reveal only those documents rel- in which parties have been ordered to pro- evant to the action.At the very least, you duce their entire hard drive, either directly Practical tips to protect against should insist that your hard drive be pro- to the opposing party or to their expert. undue disclosure duced to an independent expert for The common factor in these cases is that The following three practical tips emerge review so you can protect your confiden- the applicant has proven that there is a real from the case law on hard drive produc- tial or privileged information from falling likelihood that there are relevant documents tion orders: into the wrong hands. that have not been produced or disclosed in 1. Ensure your organization is making the affidavit of documents. It is, of course, good-faith efforts to meet its discovery Eric S. Block is a partner in McCarthy not sufficient for a party to simply assert “I obligations. Zenex Enterprises v Pioneer Tétrault’s Litigation Group inToronto.His prac- believe there are more documents”; there Balloon, 2012 ONSC 7243 is a helpful tice focuses on commercial litigation, with an must be specific evidence of non-disclosure example of how ongoing compliance emphasis on class actions and securities litigation (Warman v National Post Company, 2010 with discovery obligations can protect (eblock@mccarthy.ca).Brooke MacKenzie is an ONSC 3670). This non-disclosure can be businesses from orders for hard drive articling student at McCarthyTétrault. PRINTEMPS 2013 CCCA Canadian Corporate Counsel Association 57