Case Report – Court stresses burden on party challenging keyword search protocol

18 Dec

On December 3rd, the Alberta Court of Queen’s Bench dismissed a motion for more fulsome production, finding the applicant failed to discredit the respondents’ keyword search protocol.

The dispute centered on a set of 50,000 records that were identified and collected in a related action. The respondents reviewed 15,000 of the records manually and conducted a keyword search on the remaining 35,000. This process resulted in a set of 110 records that were produced.

The Court cited the “Ontario e-Discovery Guidelines” and its Principle 10, which endorses the use of electronic tools to identify information and records of arguable relevance. It held that the applicant had the burden of proving the inadequacy of the search protocol, held that it would be improper to draw an inference about the quality of the search from the number of records produced and held that the applicant did not otherwise prove inadequacy. In reaching this conclusion, the Court suggested that the applicant ought to have challenged the protocol more vigorously in its cross examination or ought to have called expert evidence with the same intent.

Shell Canada Limited v. Superior Plus Inc., 2007 ABQB 739 (CanLII).

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