I love Anton Piller orders! Particularly when they truly are required and rendered according to the Supreme Court’s sayings in Celanese.

However, when I read about the Law Society of BC looking at the possibility of mirror imaging hard drive for the purpose of their investigations, I had a good idea who were the members of the “Mirror Imaging Working Group”… With a name like that, it is incredibly funny to pretend that the members were tasked to “Draft guidelines and rules to consider the copying of a hard drive in law society investigations” Sort of like the fox watching the chicken!

What is most troubling is that “LeRose said there wasn’t one particular incident that led the benchers to look into the case for mirror imaging; it is simply an issue that has arisen, moving from a paper to a paperless society. ” So the benchers woke up on a sunny day and thought: “today, let’s find a practical solution to a theorical problem. Let us discuss about mirror imaging… It will be exactly as in the good ol’ days, in the paper world, when we were taking copies of all the documents in a lawyer’s office…”

Perhaps, this moring they should have read this part of Northwest Mettech Corp. v. Metcon Services Ltd., a decision from… B.C.S.C. :

“As I understand it, a computer hard drive is simply a medium on which data is stored on a semi-permanent basis in the form of electronic impulses. It may be thought of as an electronic filing cabinet which contains electronic files, each of which in turn contains electronic documents. The defendants are obligated to list all relevant documents of whatever form (including electronic documents resident on the computer hard drive). In my view they are not required to list the entire contents of nor are they required to produce their entire electronic filing cabinet any more than a party is required to list or to produce the complete contents ofits steel filing cabinet which houses documents which are in paper format.”

Until they do, I am reaussered that recommandation #1 gave a mean to the lawyer whose hard drive (or server) has been imaged:

“^…] In circumstances where the lawyer refuses to allow the copy to be made, or has concerns about the law society accessing some of the information contained on the copied record, the rules should allow for an expedited hearing before a bencher panel to resolve the situation. The panel should have the authority to order compliance with R. 4-43, with or without limitations and to order that the lawyer be suspended pending compliance.”

Wait! Are these benchers the same that woke up on that sunny?

Hat tip to John Gregory for pointing this out on his listserv and Slaw.

The Final Report on the Joint Project of the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System is out!

You will remember our post from last September in which we were sharing our opinion on the interim report via the comments of Ralph Losey and Ken Withers. Well, it would seem we have been, at least partially, heard! 

Here are the Principles that come out of this report:

1) The “one size fits all” approach of the current federal and most state rules is useful in many cases but rulemakers should have the flexibility to create different sets of rules for certain types of cases so that they can be resolved more expeditiously and efficiently.

2) Notice pleading should be replaced by fact-based pleading. Pleadings should set forth with particularity all of the material facts that are known to the pleading party to establish the pleading party’s claims or affirmative defenses.

3) A new summary procedure should be developed by which parties can submit applications for determination of enumerated matters (such as rights that are dependent on the interpretation of a contract) on pleadings and affidavits or other evidentiary materials without triggering an automatic right to discovery or trial or any of the other provisions of the current procedural rules.

4) Proportionality should be the most important principle applied to all discovery.

5) Shortly after the commencement of litigation, each party should produce all reasonably available nonprivileged, non-work product documents and things that may be used to support that party’s claims, counterclaims or defenses.

6) Discovery in general and document discovery in particular should be limited to documents or information that would enable a party to prove or disprove a claim or defense or enable a party to impeach a witness.

7) There should be early disclosure of prospective trial witnesses.

After the initial disclosures are made, only limited additional discovery should be permitted. Once that limited discovery is completed, no more should be allowed absent agreement or a court order, which should be made only upon a showing of good cause and proportionality.

9) All facts are not necessarily subject to discovery.

10) Courts should consider staying discovery in appropriate cases until after a motion to dismiss is decided.

11) Discovery relating to damages should be treated differently.

12) Promptly after litigation is commenced, the parties should discuss the
preservation of electronic documents and attempt to reach agreement about preservation. The parties should discuss the manner in which electronic documents are stored and preserved. If the parties cannot agree, the court should make an order governing electronic discovery as soon as possible. That order should specify which electronic information should be preserved and should address the scope of allowable proportional electronic discovery and the allocation of its cost among the parties.

13) Electronic discovery should be limited by proportionality, taking into account the nature and scope of the case, relevance, importance to the court’s adjudication, expense and burdens.

14) The obligation to preserve electronically-stored information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation; however, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant electronically stored information. 

15) Absent a showing of need and relevance, a party should not be required to restore deleted or residual electronically-stored information, including backup tapes. 

16) Sanctions should be imposed for failure to make electronic discovery only upon a showing of intent to destroy evidence or recklessness. 

17) The cost of preserving, collecting and reviewing electronically-stored material should generally be borne by the party producing it but courts should not hesitate to arrive at a different allocation of expenses in appropriate cases.

18) In order to contain the expense of electronic discovery and to carry out the Principle of Proportionality, judges should have access to, and attorneys practicing civil litigation should be encouraged to attend, technical workshops where they can obtain a full understanding of the complexity of the electronic storage and retrieval of documents.

19) Requests for admissions and contention interrogatories should be limited by the Principle of proportionality. They should be used sparingly, if at all.

20) Experts should be required to furnish a written report setting forth their opinions, and the reasons for them, and their trial testimony should be strictly limited to the contents of their report. Except in extraordinary cases, only one expert witness per party should be permitted for any given issue.

21) A single judicial officer should be assigned to each case at the beginning of a lawsuit and should stay with the case through its termination.

22) Initial pretrial conferences should be held as soon as possible in all cases and subsequent status conferences should be held when necessary, either on the request of a party or on the court’s own initiative.

23) At the first pretrial conference, the court should set a realistic date for completion of discovery and a realistic trial date and should stick to them, absent extraordinary circumstances.

24) Parties should be required to confer early and often about discovery
and, especially in complex cases, to make periodic reports of those
conferences to the court.

25) Courts are encouraged to raise the possibility of mediation or other form of alternative dispute resolution early in appropriate cases. Courts should have the power to order it in appropriate cases at the appropriate time, unless all parties agree otherwise. Mediation of issues (as opposed to the entire case) may also be appropriate.

26) The parties and the courts should give greater priority to the resolution of motions that will advance the case more quickly to trial or resolution.

27) All issues to be tried should be identified early.

28) These Principles call for greater involvement by judges. Where judicial resources are in short supply, they should be increased.

29) Trial judges should be familiar with trial practice by experience, judicial education or training and more training programs should be made available to judges.

Thanks to our very own Hon. Colin Campbell, the only canadian on board, for tilting the scale in the right direction! We are proud to see your wisdom as concluding remark:

“Discovery reform . . . will not be complete until there is a cultural change in the legal profession and its clients. The system simply cannot continue on the basis that every piece of information is relevant in every case, or that the „one size fits all‟ approach of Rules can accommodate the needs of the variety of cases that
come before the Courts.”

Hat tip to @pegduncan for pointing this out!

Last week, we were flabbergasted by this article which appeared on on the online edition of the ABA Journal entitled Litigation Too Costly, E-Discovery a ‘Morass,’ Trial Lawyers Say. This article is based on the interim report following a joint survey created by the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System (IAALS) of Denver University. Prima facie, this document had some credibility but after reading it, I must say doesn’t pass muster!

Thanks to Ralph Losey for putting on the dots on the “i” in his post Trial Lawyers Turn a Blind Eye to the True Cause of the e-Discovery Morass! In two words, as Ken Withers, director at The Sedona Conference, told me:

Looking at the American College report, I had the impression I was reading a report from the Buggy Whip industry, complaining about the dangers and high cost of transportation caused by the advent of automobile. These were the Buggy Whippers’ findings, I’m sure: paved roads would be a waste of taxpayer resources; since only the rich can afford automobiles, poor and middle class people will be deprived of any means of transport; and rules should be adopted requiring that all these newfangled horseless carriages be led a person on foot waiving a warning flag. For the Buggy Whippers, learning to drive, or even get a bicycle, would not be considered viable options.