Because typical databases can be made up of millions of individual records and trying to sift through millions of pages of columnar data is daunting, databases are often passed over as sources of potentially relevant information. But, they do not have to be, thanks to a recent BC decision.
One common way to deal with the data is to have a database expert prepare an “excerpt” of the information (called a query). This is usually presented in a formatted table (called a report) that makes the information understandable. However, this methodology has been challenged in the past as either: (i) creating lawyer work product, since the retrieval took place after litigation commenced, or (ii) creating a record that was not used by the parties in the normal course of business. However, in Animal Welfare International Inc. v W3 International Media Ltd.  B.C.J. No. 2642, the court rejected such arguments. In doing so, it found that producing a subset of database information using a query was not lawyer work product because the data was simply “retrieved” from the database. The court likened this to searching, extracting and printing individual files from a custodian’s hard drive – while such files are retrieved from the storage device after litigation commences, they are not considered lawyer work product. The court also found that using a query to extract information from a database should be considered to be in the normal course of business.
The world runs on databases – every time you make a phone call, buy something, take the subway, drive on a highway, look up on Google, or access Facebook, you are retrieving data from a database. They should be considered in any discovery exercise. Thanks to the above ruling, producing information from databases no longer has to be a monumental task.
Although it is a New Year and Wortzmans has a New Name, our core values remain the same.
Wortzmans is currently working on e-discovery projects with six different vendor firms. Each firm has unique expertise and unique products. Finding our clients the best e-discovery tool or product to suit their specific matter, at the best pricing has always been our mission.
Our approach to working with vendors is critical. Because we work with so many different local and national e-discovery vendors, we collaborate with them to provide exactly what we need to make any project efficient.
Our exposure and familiarity with many different review platforms ensures that our reviewers do not need to constantly learn new tools. Our team is nimble, as are our project managers who are able to readily shape and extract the necessary information to effectively manage your project.
So, while we have a new name, we are still the same firm, with the same values!
Canadian courts continue to apply the proportionality principle to production motions to limit “fishing expeditions” and rein in production costs. In Murphy_v._Bank_of_Nova_Scotia_2013_N.B.J..pdf, the court significantly narrowed the scope of the requested production when it ordered the defendant to provide a further and better affidavit of documents. In doing so, the court discussed proportionality principles at length. It found the plaintiffs’ request extremely broad and based on speculation, not evidence. Reference to a possible “smoking gun” that might exist in one of many emails authored by the defendants’ employees was “way too speculative”. In contrast, the estimated costs for the defendant to retrieve emails for the 46 requested employees would be in excess of $4 million. The burden, cost and delay of the requested production was thus too great when balanced against the speculative possibility of such retrieval yielding unique information that would be valuable to the determination of the issues. The court therefore limited its order to emails to and from only four employees from a very short time period.
Lessons learned – proportionality is here to stay and don’t go fishing without solid evidence.