Databases – Not the e-Discovery Nightmare Everyone Assumes

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. [2013] 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.