The Supreme court of Newfoundland and Labrador (trial division)  recently rendered a decision regarding the discovery of emails and their production. The case is GRI Simulations Inc. v. Oceaneering International Inc., 2010 NLTD 85 (CanLII).

In this case, the defendant Oceaneering filed an application for relief of email production. Its main basis are that it is 1) very time consuming, 2) expensive in time and disbursements and 3) disproportionately expensive in relation to the benefit to be obtained (¶2). In support of these, it cites, among other authorities, the Sedona Canada Principles. Citing the same Principles, the plaintiff GRI is of the opinion that the burden has to be assumed by Oceaneering, and that the cost issue is to be addressed by taxation, at the conclusion of the litigation (¶66).

Justice Hoegg first restated the principle that “neither the fact that email is a convenient form of communication nor the fact that it is electronically stored relieve a litigant from his or her obligation to produce it” (¶27). Regarding discovery of such emails and the arguments of Oceaneering, he notes that:

” a “costs, time and effort” argument involving email is the same as when hard copy documents are in issue. For example, the cost, time and effort to produce hard copy documents which are disorganized or stored in various places could also be considerable. Such an argument may or may not prevail in this or any other case because there is cost, time and effort associated with all document production. In any event, it does not appear to me that searching email archives for producible documents is inherently more onerous or expensive than conducting manual searches for hard copies of documents.”[¶28]

The question now becomes one of proportionality between the costs incurred by Oceaneering and the usefulness of the documents to be found. The judge concludes that “[i]t is for the receiving party, in this case GRI, to do so. A receiving party knows its case and is in a better position to assess whether a document aids its position.”[¶34] In the proportionality analysis, aside from the 8M$ claim, it is also important to note that the counterclaim by Oceaneering weighted against them in its attempt to limit document production – Oceaneering must lie in its self-made bed…

This decision underlines – if need still be – the need for a comprehensive approach to e-discovery and a global readiness in that matter so as not to have to run to the court to catch one’s metaphorical breath – it may not work and you’ll still have to run.