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Digest of the Week | Production of Electronic Records

Discovery -- Discovery of documents – e-Discovery

A search of Canadian cases shows that Marineland v. Demers is likely the only instance of civil litigation involving an alleged plot to steal an Odobenus rosmarus divergens, or Pacific Walrus.

The proceedings, begun in 2013, generated a three-pronged hearing reported at 2017 CarswellOnt 13660. Both parties requested further and better affidavits of documents, while the would-be walrus-rustler asked to examine another representative of the amusement park. In the final paragraphs of the judgment, Henderson J. noted that the defendant Demers "had created a multitude of electronic records because of the fact that Demers regularly uses social media and public websites to post comments, post videos, and engage in conversations." These documents were relevant but producing the entirety of available material could have been onerous. Ultimately, Demers was not ordered to produce hard copies of electronic records he had created.

The order and circumstances are somewhat unusual. When production of electronic records is at issue in disclosure proceedings, most often the information cannot be accessed without some aid such as a password. In the present case the defendant was excused from the disclosure of hard copies specifically to the extent that they were publicly available. An appendix to the case lists 16 websites, including Facebook, Twitter, Instagram, a personal website, and four fundraising websites (one would expect these last, by their very nature, to be public and welcome internet traffic from members of the public). All of the electronic documents appear to be attached to a specific, registered account and this is not a case of comparatively anonymous comments scattered across several unrelated websites.

The court does not enumerate the principles set out in Ontario's e-discovery regime, but nonetheless embodies them. When considering whether a document should be disclosed R. 29.2.03 (1)(e) of the Ontario Rules of Civil Procedure specifically states that the Court shall take into account whether “the information or the document is readily available to the party requesting it from another source”. This was exactly the circumstances.

E-discovery rules also require a court to keep proportionality and the volume of discovery front of mind. The hearing of the "current round of motions" in the instant case arose out of a request for further and better documents originally filed in 2015. Initial cross-examination of the defendant Demers had given rise to disclosure of an additional 836 documents, even leaving aside publicly available electronic documents. With the end of pleadings and discovery receding ever farther into the future, the order took into account the need to keep discovery as efficient as possible. In the modern age, information and the ways of accessing it are unlikely to become more simple. Marineland v. Demers demonstrates a pragmatic and flexible approach to discovery that lies at the heart of Ontario’s e-discovery regime, resulting in the type of order that courts will have to consider more and more frequently.
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