The Ontario E-Discovery Implementation Committee (EIC) has released drafts of seven model e-discovery precedents, on which it is inviting public comment.


The Model Documents

The seven documents are:

Model Document #1: Meet and Confer Agreement
Model Document #2: Preservation Agreement
Model Document #3: Advice Memo Regarding Documentary Discovery (Corporate Client)
Model Document #4: Advice Memo Regarding Documentary Discovery (For an Individual)
Model Document #5: Preservation Letter (To be Sent to Opposing Counsel)
Model Document #6: Preservation Letter (To be Sent to Defendant or Proposed Defendant)
Model Document #7: Preservation Order

The EIC invites comments from all interested parties. The public comment period extends until January 4^th, 2008. The Committee will review the comments received and make appropriate revisions. Finalized e-discovery precedents will be made publicly available.

The draft e-discovery precedents are available here.

Questions to Consider

In reviewing each of the proposed model documents, include the following:

• Is the document useful, and would counsel use it in their own practice?
• If not, what aspects of the document are of concern, and how could the document be improved to make it more practical?
• Is the document effective in achieving the objective of proportionality in the discovery process? If not, why not, and what should be changed?
• Where the document sets out a proposed standard (e.g., for format of document exchange), is the standard appropriate? If not, what standard is preferable?
• Are there other model precedents relating to e-discovery that could usefully be prepared?

Providing Your Comments

Comments on these draft documents 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

About the Ontario E-Discovery Implementation Committee

The E-Discovery Implementation Committee is a joint committee established by the Ontario Bar Association and The Advocates’ Society. It is composed of litigators and members of the judiciary in Ontario.

The mandate of the EIC is to implement “on the ground”, within the Ontario court system and litigation bar, best practices with respect to electronic discovery. The goal is to carry forward the job begun by the Task Force on the Discovery Process in Ontario, and its Guidelines for the Discovery of Electronic Documents in Ontario. The EIC is also guided in its work by the Sedona Canada Principles Addressing Electronic Document Production.

The mandate of the EIC is to be achieved by, among other things:

(1) Preparing model precedents and best practices guidelines relating to the discovery of electronic documents.

(2) Educating the bar and the judiciary regarding electronic discovery issues and the model documents.

(3) Participating in the drafting of practice directions or Rule amendments dealing with e-discovery issues.

A key theme in the work of the EIC is proportionality – the requirement to ensure that the e-discovery requirements that are placed on litigants are proportional, in terms of cost, time and effort, to the nature and dollar value of the case.

The members of the EIC are Duncan Boswell, Tim Buckley, Mr. Justice Colin Campbell, Laura Cooper, Michael Fraleigh, Master Benjamin Glustein, Brett Harrison, Peter Henderson, Kathryn Manning, Brent McPherson, David Outerbridge, Ken Prehogan, Mary Jane Stitt, and David Wires.

The EIC’s next projects include the preparation of a best practices guide for addressing the costs and technological requirements of e-discovery, and the drafting of an e-discovery checklist for use by counsel in managing their litigation files.