In a recent Nova Scotia Supreme Court ruling, the plaintiffs in Velsoft Training Materials Inc v Global Courseware Inc, 2012 NSSC 295 (CanLII) were ordered to share the details of the searches they used in identifying relevant records included in their production.
The defendants, Global Courseware, argued that the plaintiffs had not disclosed all relevant electronic records, since they had produced over 68,000 records, while the plaintiffs had only produced about 2,800. According to the defendants, significantly different search criteria had to have been used by each party. The defendants provided their search criteria to the plaintiffs, but the plaintiffs refused to reciprocate.
Justice Wood ruled that a discrepancy in the number of records disclosed by each party was not, in and of itself, sufficient reason to compel further disclosure. However, he did rule that the defendants were entitled to know the search criteria that the plaintiffs used, so that they could decide, based on that, if they wanted to challenge the completeness of the disclosure.
Sharing of the methodology to identify potentially relevant records is encouraged in many jurisdictions, including Ontario where it is part of the Discovery Plan. The Ontario Implementation Committee Model Discovery Plans go further than just sharing search terms, requiring the parties to:
“Identify and prioritize key authors and custodians, record types, relevant time frames, locations, and other parameters within which search will be conducted for relevant records. Consider anticipated volume of records, cost and resources required to search for and review records for relevance, and the importance and complexity of the issues. Prioritize steps to be taken and consider whether a phased approach is appropriate. If so, set out protocol for phased search.”
Sharing and agreeing to record identification methodologies at the outset of a matter is one way to significantly reduce the costs involved in producing electronic records. Wortzman Nickle can assist you in developing and reviewing your identification processes.