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Ontario Court Issues Decision on E Discovery Citing the Sedona Principles
The Ontario Superior Court of Justice dismissed an appeal from the decision of Master Dash ordering a defendant (“Cox”) to produce his personal laptop computer for inspection by a forensic expert retained by the plaintiff (“Vector”). Vector alleged that Cox had gone to work for Vector’s competitorand was soliciting Vector’s clients for his new employer. Vector produced copies of emails forwarded by Cox to them, which Cox claimed he no longer had in his possession as he had deleted them from his laptop. Vector requested that Cox be ordered to produce his computer to Vector’s expert, who would search for emails containing references to the names of Vector’s clients in order to ascertain whether Cox was soliciting them.
In his ruling, Justice Perell made reference to a number of decisions regarding electronic discovery, including a favourable consideration of the British Columbia case of Desganage v. Yuen . Significantly, Justice Perell also made what appears to be the first judicial reference to The Sedona Canada Principles - Addressing Electronic Discovery since the release of that document earlier this year (as reported on in the February 7, 2008 issue of this Newsletter). Justice Perell made particular reference to Sedona Principle 2 and its associated commentary, which prescribes a notion of proportionality in e-discovery in order to avoid excessive cost and impinging on privacy and confidentiality. In this case, Justice Perell stated that the Master had either ruled that there was an undisclosed document in the laptop, or had ruled that the requested order was reasonable given the relevance of the evidence, the carefully-defined parameters of the search, and Vector’s willingness to pay the costs associated with disclosure.
For a copy of the decision, visit:
http://www.canlii.org/en/on/onsc/doc/2008/2008canlii11050/2008canlii11050.html