V. PRODUCTION OF ELECTRONIC RECORDS
Upon being served with a Notice to Produce, the served party must list all documents relevant to the action in an Affidavit of Documents (A.R.C. 186). Under this Rule, “documents” includes recordings of sound, photographs, films, charts, drafts and all records of any kind (emphasis added). Over the last decade, courts in many Canadian jurisdictions have adopted a broad interpretation of the term “document”, so as to require disclosure of information stored on computer hard drives, magnetic tape backups, wordprocessing equipment, electronic diaries and/or electronic notebooks.(4) Given this case law, it appears clear that parties involved in commercial litigation may fully explore various modes of electronic communication and records in the control of the opposite parties, provided that they are relevant. As forms of document creation and sources of information evolve, litigation counsel must be aware of them. For example, many businesses publish information and press releases on their websites which may be relevant to a law suit.
When preparing for a discovery, consider the potential types and sources of electronic communications and electronic records, such as: wordprocessing documents, the electronic drafts of any otherwise relevant hard copy document, electronic spreadsheets, accounting data, sales and inventory data bases, computer programs source code, e-mail, voice mail backups, computerized diaries and scheduling programs. You may want to examine on: Who in the company reviewed and produced the litigants documents? What procedures were followed? Does the business have a local area network? Do employees have laptop computers and can electronic records be accessed from outside the office? What are the company’s data – backup procedures for wordprocessing, e-mail and voice mail? What is the company’s policy, if any, for their retention or destruction of electronic documents and records? Are any electronic records kept off-site, and are they available to any professionals retained by the companies, such as consultants or subcontractors?
A couple of caveats, before getting too carried away with your electronic media discovery: What’s good for the goose is good for the gander. If one litigant goes overboard in its demands for production of electronic records, the same requests will likely be made by the other side. Further, while Canadian courts will allow discovery of electronic records, our courts recognize the potential for abuse and will not hesitate to impose conditions when electronic records are ordered to be produced. In Bank of Montreal v. 3D Properties Inc., supra, the Court ordered production of electronic records on the conditions that firstly, privileged and confidential information could first be edited out; secondly, that the data was only required to be produced in its original format and was not required to be altered to suit the needs of the requesting party; and thirdly, that the reasonable costs of the responding party were to be paid by the requesting party.
VI. USE OF TECHNOLOGY BY THE COURTS
Our courts have also been caught up in the technology wave. Computers are being used during trial for such purposes as presentation of computer generated demonstrative evidence. Animations have been accepted in both criminal and civil trials(5), as demonstrative evidence and this has given rise to a whole new area of specialty – the independent technology consultant to law firms.
There are a number of concurrent initiatives taking place at this time at all levels of court in Alberta. After talking to several sources at the Court House, including technicians, staff and Judges. I am informed that more than one-half of all judges at all levels are now using computers in some way. With the introduction of the electronic appeal book, the Court of Appeal is more dependent on computers than the other levels of court. It has been suggested that it should be a prerequisite for new appointments to the Bench to be computer literate. The Court House in Edmonton has a local area network e-mail system at the Court of Queen’s Bench and Court of Appeal levels and there is an overwhelming reliance on it. Even if a Judge does not use it directly, his or her secretary will use it. A large percentage of judges draft their decisions on computer. There is a pilot project to make all Alberta judgments available on a Court House intranet and if successful, they may be made available on the internet. All provincial court judges are being provided with laptop computers. There are a number of other exciting initiatives that Madam Justice Russell of the Alberta Court of Appeal will present at this seminar.
VII. ELECTRONIC APPEAL BOOKS
Since September 1st, 1996, our Court of Appeal has required that appeal books be provided to the Court in both electronic and paper copy form. The previous practice directives and manuals requiring electronic appeal books have been replaced by a new practice directive dated January 1st, 1998 from Chief Justice Fraser and a new publication titled “Building Electronic Appeal Books”, which are attached at the end of this paper. These materials are self-explanatory and will not be discussed further herein.
VIII. CONCLUSION
If you are “old school” or have otherwise been trying to avoid technology, it has become virtually impossible. Some of us may have looked at computers as either a tool for the staff or a necessary evil in the office. It is suggested to all practitioners that technology has become so integrated into the legal profession as to be a prerequisite of good practice. Whatever your area of specialization, computers and technology have become a fact of life and its effects have also touched almost every aspect of court proceedings. To remain effective litigators, lawyers must familiarize themselves with the use of technology by their clients and other parties, as well as the technological support available to the legal profession and the bench.