New Comment on Proportionality

If parties can’t agree on methods to make e-discovery proportionate and cost efficient, they risk having to produce all relevant documents, no matter the cost. In Cameco Corp. v. Canada 2014 T.C.J. No. 31.pdf, the Tax Court of Canada found that, despite the appellant having produced an enormous volume of ESI and spending huge resources in the process, there were deficiencies in the appellant’s production. Thus, “having agreed to conduct full disclosure”, the court ordered that the appellant provide all documents that were relevant and material to any matter in issue.

The court also took issue with the fact that the appellant had failed to identify the legal basis of redactions that it had made to the documents listed in its Schedule “A”. The appellant was ordered to do so, in addition to delivering a further and better affidavit of documents.

The respondent also argued that the appellant’s use of the metadata to describe the documents in its List of Documents was unsatisfactory because elements like the author and date in the description did not correspond directly to the author and date on the face of the document. The court agreed that it would be more helpful to only have the document identifier number and no author or date. In doing so, it held that as long as the appellant had provided sufficient description of the documents using a numerical identifier for each document, its identification of the document was satisfactory.

​Once again, our Courts endorse proportionality and openness in e-discovery.