The Ontario E-Discovery Implementation Committee (EIC) has released eight model e-discovery precedents, as well as additional documents providing guidance on e-discovery best practices. These documents are really helpful to help lawyers and parties understand their respective obligations and the way in which they should approach e-discovery. However, it should be noted that in a real case, these documents need to be customized in light of the particular facts at bar, the information management and IT infrastructure of the parties as well as the scope of the case.

The eight model documents are:

Discovery Agreement
Preservation Agreement
Memorandum to Corporate Client Regarding Documentary Discovery
Memorandum to Individual Client Regarding Documentary Discovery
Preservation Letter (To be Sent to Opposing Counsel)
Preservation Letter (To be Sent to Defendant or Proposed Defendant
Preservation Order
Annotated E-Discovery Checklist (with suggestions on how to minimize e-discovery costs)

Public comment drafts of Model Documents #1 through #7 were released in the fall of 2007. These Model Documents have been revised based on comments received, as well as to reflect changes to the Sedona Canada Principles Addressing Electronic Discovery and impending amendments to the Ontario Rules of Civil Procedure (see below), and were released in revised form by the EIC in February 2009.

Model Document #8 – the Annotated E-Discovery Checklist – was released for the first time in February 2009, as were Sample Document #1 (Letter Confirming Discovery Agreement) and the 10 Guiding Principles to Minimize E-Discovery Costs, below.

Additional E-Discovery Guidance Documents Prepared by the EIC

Letter Confirming Discovery Agreement
(this document is a sample, using hypothetical facts, of a discovery agreement in letter format in a relatively uncomplicated e-discovery matter)

10 Guiding Principles to Minimize E-Discovery Costs

Helpful E-Discovery Commentary

From time to time, the EIC will highlight here helpful commentaries prepared by e-discovery lawyers and other experts.

Peter Henderson, The Essentials of E-Discovery (August 2008)

Annotations within the Model Precedents and other EIC Guidance Documents

Annotations are included throughout the EIC’s model documents and the EIC’s other e-discovery guidance documents. Many of the annotations refer to The Sedona Canada Principles Addressing Electronic Discovery (the “Sedona Canada Principles”). The Sedona Canada Principles are a set of national guidelines for e-discovery in Canada, which reflect both existing legal principles and a set of identified best practices. The Sedona Canada Principles are intended to be compatible with the discovery rules in all Canadian jurisdictions. Effective January 1, 2010, civil litigants in Ontario will be required, pursuant to Rule 29.1 of the Rules of Civil Procedure, to consult and have regard to the Sedona Canada Principles in preparing a discovery plan for an action. A copy of the Sedona Canada Principles may be downloaded from www.thesedonaconference.org, where they are found under the list of publications for Working Group 7.

All of the materials prepared by the EIC are being made available to the public for educational purposes, to facilitate the informed, efficient and proportionate use of e-discovery in litigation. They are not provided as legal or technical advice and should not be relied upon as such.

Providing Your Comments

The EIC is always receptive to comments on its materials. The Committee will review all comments received and consider appropriate revisions. Comments may be submitted to David Outerbridge, Chair of the EIC.

Email: douterbridge@torys.com
Fax: 416.865.7380
79 Wellington Street West
Suite 3000
Toronto, ON M5K 1N2

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