The Nova Scotia Supreme Court issued a notable e-discovery decision on August 2nd.
The Court dismissed a motion to compel further documentary production as premature because the discrepancy in production volume between the parties was insufficient proof that the party producing fewer documents had failed to meet its obligations. More importantly, however, the Court accepted the moving party’s argument that (in the absence of a discovery agreement) it was entitled to information about the other party’s search protocol before oral discovery. The Court described the argument as follows:
The basic position of the defendants is that the Civil Procedure Rules contemplate that the parties will make a good faith effort to try and agree on the criteria to be used in conducting searches for electronic information to be disclosed. In other words, each party should apply the same relevance analysis in reviewing their electronic records. Even in the absence of an agreement, the parties should be required to disclose the criteria which they used so that the other parties know the basis on which the affidavit of disclosure was prepared.
In many cases, discovery examinations include questions directed at identifying additional undisclosed documents to be produced. Counsel for the defendants does not believe that disclosure of the electronic search criteria should be left to the discovery process. He suggests that this would result in bifurcation with an initial discovery on the scope of disclosure followed by an adjournment todeal with newly identified records. It would then be necessary to have a second discovery on the substantive issues.
The Court also made some findings about the requirements for an “affidavit disclosing relevant electronic information” under the Nova Scotia Civil Procedure Rules.