In Canadian common law jurisdictions, as soon as litigation is reasonably contemplated, parties have an obligation to take reasonable and good faith steps to preserve potentially relevant electronically stored information (ESI). This preservation obligation is triggered as soon as litigation is anticipated or threatened and can arise well before a statement of claim is issued.
Unlike physical evidence in a construction dispute, for example, a malfunctioning electric drill, ESI is dynamic and can easily and inadvertently be altered or deleted. Organizations may also have automatic electronic file destruction policies that require urgent action. To avoid losing potentially relevant evidence, parties need to respond quickly to meet their preservation obligations and avoid claims of spoliation.
Spoliation is the intentional destruction of evidence relevant to ongoing or contemplated litigation. It is important to note that spoliation does not occur merely because evidence has been destroyed – the evidence must have been destroyed intentionally and to affect the outcome of the litigation. The principal remedy for spoliation is a rebuttable presumption of fact that the lost or destroyed evidence would not assist the spoliator.
Where evidence has been unintentionally destroyed, it is not spoliation, but there are still remedies available through the court’s rules of civil procedure and the court’s inherent ability to prevent abuse of process. Such remedies may include denial of costs or exclusion of expert reports.
To respond meaningfully and quickly to their preservation obligations, organizations should consider implementing a proactive preservation plan. The plan should, among other things, identify an IT liaison to co-ordinate the preservation, suspend automatic file destruction policies, identify records for preservation, and issue litigation hold notices to custodians of potentially relevant ESI. Having such a team and plan in place will allow an organization to respond quickly to eDiscovery requests, saving time and money.
A reasonable document management system can help reduce the costs of preservation. Further, a data map of where data is stored and an understanding of how difficult it is to access those documents will help an organization make reasonable and good faith efforts to meet its preservation obligations.
A reasonable records retention policy can also assist organizations to satisfy their preservation obligations and avoid claims of spoliation. Generally speaking, organizations are not required to identify, preserve, or collect ESI that is deleted in the ordinary course of business or within the framework of a reasonable information governance structure. Records retention policies will be further explored in our next article.
Candice Chan-Glasgow is director of review services and counsel at Heuristica Discovery Counsel LLP, which has offices in Toronto and Calgary. It is the sole national law firm whose practice is limited to eDiscovery and electronic evidence.