SPOLIATION PARLAY:

The Virginia wrongful death litigation of Lester v. Allied Concrete, in which cost sanctions[1] were awarded for spoliation of online evidence,[2] has a new compatriot in the New Jersey case of Gatto v. United Airlines.[3]  Counsel should be mindful when advising clients with regard to electronic evidence, and Judges are taking note and increasingly ready to issue both adverse inference “spoliation instructions” along with steep monetary sanctions for spoliation of evidence due to a failure of Information Governance generally, and of document retention practices, specifically; especially in that exponentially expanding category of Electronically Stored Information (ESI).

One member of the Gartner Group has defined Information Governance, as “[…] the specification of decision rights and an accountability framework to encourage desirable behavior in the valuation, creation, storage, use, archival and deletion of information.  It includes the processes, roles, standards and metrics that ensure the effective and efficient use of information in enabling an organization to achieve its goals”.[4]

Focusing on the last 7 words of this definition “enabling an organization to achieve its goals”, winning the case should not come at the expense of sanctions that lead to a lost case, that wipe-out the award from a victory, or that leave the winner of a pyrrhic victory in the negative after paying a sanctions award to the losing but smiling party.  In at least one of the above cases of Lester and Gatto, Counsel had apparently advised the client to “clean-up” their Facebook, or something like that.  It is vitally important that Counsel get to grips and up to date with the expanding offerings of online social media tools, and their impacts on the litigation landscape, the document retention matrix, the scope of Professional Responsibility, and the cost of sanctions for spoliation and failures to produce.

Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation”.[5] [emphasis added].

THE STANDARDS, TODAY:

As shown in Mosaid,[6] Zubulake,[7] and Goodyear,[8] Not all Judges and Magistrate Judges, will see mere adverse inference instructions, which allow the errant side to still try their luck, enough of a deterrent.[9]  Indeed, with a January 15, 2010 opinion entitled Zubulake Revisited: Six Years Later,[10] Judge Scheindlin clarified her thoughts on Information Governance and Discovery (e-Discovery) of Electronically Stored Information (ESI) by providing several solid, useful, bright line rules distinguishing between ESI lapses as negligence, willfulness, and gross negligence.

“[…], it is well established that negligence involves unreasonable conduct in that it creates a risk of harm to others, but willfulness involves intentional or reckless conduct that is so unreasonable that harm is highly likely to occur.”[11]

Gross negligence has been described as a failure to exercise even that care which a careless person would use”.[12]

In addition to her analysis, Judge Scheindlin issues a clear caveat as follows “[t]hese examples are not meant as a definitive list.  Each case will turn on its own facts and the varieties of efforts and failures is infinite”.[13]  However, applying the above standards to specific steps of the litigation process, she continues in what I here condense and present as a handy cheat-sheet.

1. Preservation of Relevant Information.

“A failure to preserve evidence resulting in the loss or destruction of relevant information is surely negligent, and, depending on the circumstances, may be grossly negligent or willful”.[14]

2. Intentional Hampering Acts (*author’s terminology).

“[…] the intentional destruction of relevant records, either paper or electronic, after the duty to preserve has attached, is willful”.[15]

3. Issuance of a Litigation Hold.

“Possibly after October, 2003, when Zubulake IV was issued, and definitely after July, 2004, when the final relevant Zubulake opinion was issued, the failure to issue a written litigation hold constitutes gross negligence because that failure is likely to result in the destruction of relevant information”.[16]

4. Collection and Review.

“[…] depending on the extent of the failure to collect evidence, or the sloppiness of the review, the resulting loss or destruction of evidence is surely negligent, and, depending on the circumstances may be grossly negligent or willful.  For example, the failure to collect records – either paper or electronic – from key players constitutes gross negligence or willfulness as does the destruction of email or certain backup tapes after the duty to preserve has attached”.[17]

5. Litigation Dragnets (*author’s terminology).

“By contrast, the failure to obtain records from all employees (some of whom may have had only a passing encounter with the issue in the litigation), as opposed to key players, likely constitutes negligence as opposed to a higher degree of culpability”.[18]

6. Additional Preservation Measures (*author’s terminology).

“[…] the failure to take all appropriate measures to preserve ESI likely falls in the negligence category”.[19]

7. Assessing the Relevance and Prejudice of Spoliated Evidence (*author’s terminology).

“[…] for more severe sanctions – such as dismissal, preclusion, or the imposition of an adverse inference – the court must consider, in addition to the conduct of the spoliating party, whether any missing evidence was relevant and whether the innocent party has suffered prejudice as a result of the loss of evidence”.[20]

8. Presumptions of Relevance; Jury Instructions (*author’s terminology; emphasis added).

“Where a party destroys evidence in bad faith, that bad faith alone is sufficient circumstantial evidence from which a reasonable fact finder could conclude that the missing evidence was unfavourable to that party”.[21]

In the extreme, willful or bad faith conduct can bring jury instructions “that certain facts are deemed admitted and must be accepted as true”; in the mid-range, willful or reckless conduct may bring jury instructions imposing a “mandatory but rebuttable” presumption.[22]

At the baseline-level, an instruction may issue that “permits (but does not require) a jury to presume that the lost evidence is both relevant and favorable to the innocent party.  If it makes this presumption, the spoliating party’s rebuttal evidence must then be considered by the jury, which must then decide whether to draw an adverse inference against the spoliating party”.[23]

9. Fitting the Sanction to the Conduct/Misconduct (*author’s terminology).

“It is well accepted that the court should always impose the least harsh sanction that can provide an adequate remedy.  The choices include – from least harsh to most harsh – further discovery, cost-shifting, fines, special jury instructions, preclusion, and the entry of default judgment or dismissal (terminating sanctions).  The selection of the appropriate remedy is a delicate matter requiring a great deal of time and attention by a court.”[24]

10. When Terminating Sanctions are Appropriate (*author’s terminology).

“However, a terminating sanction is justified in only the most egregious cases, such as where a party has engaged in perjury, tampering with evidence, or intentionally destroying evidence by burning, shredding, or wiping out computer hard drives”.[25]

THE TAKEAWAY:

Actively backup (all ESI systems of the client, of Counsel, and of the agents for each);

Be comprehensive (in coverage scope: in-house systems, mobiles, external providers);

Communicate duties (in advance and ongoing: Counsel to client; client to Counsel);

Diligently enforce (client for Counsel oversight; Counsel to confirm compliance);

Educate fully your employees and agents (client-side, Counsel-side, and outside);

Fix snafus, logjams, and communications failures as fast and fully as possible;

Get professionals involved in your Information Governance plans very early.

ESI is here to stay, and expanding in depth and breadth at an extreme pace; e-Discovery has caught-up, and is keeping up – at least in the Second Circuit and the Districts it comprises, and also in the United States Court of Appeals for the Federal Circuit.[26]  Counsel should follow-suit!

************************************************************************

Author:

Ekundayo George is a sociologist and a lawyer, with over a decade of legal experience including business law and counseling (business formation, outsourcing, commercial leasing, healthcare privacy, Cloud applications, social media, and Cybersecurity); diverse litigation, as well as ADR; and regulatory practice (planning and zoning, environmental controls, landlord and tenant, and GRC – governance, risk, and compliance investigations, audits, and counseling) in both Canada and the United States.  He is licensed to practice law in Ontario, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America (U.S.A.). Please See: http://www.ogalaws.com

He is an experienced strategic and management consultant; sourcing, managing, and delivering on high stakes, strategic projects with multiple stakeholders and multidisciplinary teams.  Please See: http://www.simprime-ca.com

Backed by courses in management, organizational behaviour, and micro-organizational behaviour, Mr. George is also a writer, tweeter and blogger (as time permits), and a published author in Environmental Law and Policy (National Security aspects).

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”), in whole or in part for their content, or their accuracy, or their availability.

This article does not constitute legal advice or create any lawyer-client relationship.


[1] Lester v. Allied Concrete, (Case No. CL08-150, and Case No. CL09-223), Final Order dated October 21, 2011 (Va. Cir. Ct. 2011). Online: >http://www.scribd.com/doc/78439131/Lester-v-Allied-Concrete-CL08-150-102111-Final-Order< The amount of the final sanction was a fees award of $722,000.00.

[2] Lester v. Allied Concrete, (Case No. CL08-150, and Case No. CL09-223), Ruling dated September 1, 2011 (Va. Cir. Ct. 2011).  This ruling granted inter alia, a motion for sanctions (the party deleted Facebook photos then the account, and later swore under oath to never having done so, with their legal counsel further attesting that the client did not own a Facebook account); all after the other side had gotten wind of the account and requested production.  Online: >http://valawyersweekly.com/vlwblog/files/2011/09/Lester-Hogshire-order.pdf<

[3] Gatto v. United Air Lines, Inc., No. 10-cv-1090, 2013 U.S. Dist. LEXIS 41909, slip op. at 11 (D.N.J. Mar. 25, 2013).  Ruling dated March 25, 2013.  Once again, a Facebook account had been improperly deleted after a production request and Order.  The Judge, here, (stating at note 1 on page 5 of the Judgement that there was no difference to him between mere “account deactivation” and “permanent account deletion” with regard to spoliation: “[…]as either scenario involves the withholding or destruction of evidence [.]”), ruled that an adverse inference instruction to the jury would suffice, and declined to impose a monetary sanction.  Online: >http://www.technologylawsource.com/uploads/file/GattovUnitedAirLinesCaseNo10-cv-1090-DNJ.pdf<

[4] Debra Logan, Research VP, Gartner Research.  What is information Governance?  And Why is it So Hard? Published on blogs.gartner.com, January 11, 2010.  Online: >http://blogs.gartner.com/debra_logan/2010/01/11/what-is-information-governance-and-why-is-it-so-hard/<

[5] This definition was laid down by United States Circuit Judge Joseph M. McLaughlin, writing the February 12, 1999 judgement of a unanimous 2nd Circuit panel in West v. Goodyear Tire & Rubber Co., 167 F3d 776, 779 (1999).  There, the 2nd Circuit remanded a case on finding that outright dismissal of Plaintiff’s negligence action for spoliation (disposing of the allegedly malfunctioning device) was too draconian a sanction.  It was followed by the Southern District of New York with United States District Judge Shira A. Scheindlin’s July 20, 2004 ruling in Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (2004) – sometimes also styled Zubulake V – an employment discrimination case involving spoliation by failure to preserve and produce backup email tapes, that was itself a precedent in the guidance the Judge issued for future electronic discovery practices; as well as by the New Jersey District Court with the December 7, 2004 ruling of United States District Judge William J. Martini, in Mosaid Technologies v. Samsung Electronics, 348 F.Supp.2d 332, 335 (D.N.J. 2004), also involving the spoliation of electronic evidence where the failure to specifically mention “emails” within/alongside a request for the production of “documents”, should not have permitted the non-production and willful destruction of those emails.

[9] See contra, Gatto, at note 3, supra, and accompanying text.

[10] Zubulake Revisited: Six Years Later (January 15, 2010 Amended Opinion and Order of United States District Judge Shira A. Scheindlin, in) Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, No. 05 Civ. 9016 (SAS), 2010 WL 93124 (S.D.N.Y. Jan. 11, 2010).  Online: >http://ralphlosey.files.wordpress.com/2010/01/05cv9016-january-15-2010-amended-opinion.pdf<

[11] Id. at page 7 of the 88 page Amended Opinion and Order.

[12] Id. at page 8.

[13] Id. at page 10.

[14] Id. at pages 8-9.

[15] Id. at page 9.

[16] Id. at page 9.

[17] Id. at page 10.

[18] Id. at page 10.

[19] Id. at page 10.

[20] Id. at page 14.

[21] Id. at page 15.

[22] Id. at pages 21-22.

[23] Id. at page 22.

[24] Id. at pages 19-20.

[25] Id. at pages 20-21.

[26] See Ekundayo George.  GRC: Governance (Part 2).  Published on ogalaws.wordpress.com, October 29, 2012, at note 12 and accompanying text.  Online: >https://ogalaws.wordpress.com/category/regulatory-and-government-affairs/governance-risk-compliance-grc-and-sanctions/<  Model e-Discovery Order for patent litigation, as presented to the Eastern District of Texas Judicial Conference on September 27, 2011, by the Honourable Randall R. Rader, Chief Judge of the United States Court of Appeals for the Federal Circuit.

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eDiscovery compliance is a growing but under-appreciated challenge.

I was reading an article entitled “Social media and your eDiscovery strategies”,[1] and it re-affirmed my view that the law, eDiscovery practice and procedure, and the courts will all need to undergo a continuous paradigm-shift in order to adjust to the new wired world in which we live, work, and “try to” relax.  I wrote some time ago of the dangers of User-generated Legality Issues (UGLIs) in social media,[2] and the impending challenges of addressing them.  Suits regarding these UGLIs will require (and mandate prior diligence in and adoption of), good and sustained collection and preservation techniques.

Canada’s strong protections, coupled with weak collections, may yet prove costly.

The Supreme Court of Canada has found that there is no secondary liability from mere linking (without more) to a defamatory site with regard to online defamation through libel or slander.[3]  More recently, with regard to cyberbullying, the Court has also found that an alleged victim of same, who is a minor, need not disclose his or her identity merely in order to confront an alleged cyberbully.[4]  Anonymity of victims is protected, and the accused in some cases will, likewise, be protected against liability.  However, in cases where the facts as presented are more indicative of malice or premeditation, the accusers and the accused will (and must), first be judged on their own merits by the lower courts.[5]

Now, with a rise in the number of employers permitting their directors, officers, employees, contractors, agents, volunteers, and assigns to access proprietary work, and non-work third-party platforms with their own portable devices (BYOD)[6] and through clouds in multiple jurisdictions, the question of how best to monitor this and retain a record in case of future-arising UGLIs, becomes very pressing.  Speaking recently with a colleague who, like me, is also dually licensed in both the Canada and the United States, we agreed that it is increasingly likely that a Canadian entity will face significant eDiscovery sanctions for failing to “collect, preserve, and produce”, with regard to some litigation or regulatory matter venued in the Continental United States.  The reason for this is the vastly divergent approaches to eDiscovery currently prevailing in each of these two nations, and the high possibility that a presiding U.S. judge may conclude that a foreign business entity, including a Canadian (or other nation’s) business entity:

  1. Physically doing or attempting to do, business in the United States; or
  2. Listed on a United States Exchange and/or sourcing funds in the United States; or
  3. Hosting servers accessed by clients or employees in, or minors of the United States; or
  4. Involved in a U.S. entity change of control or character (merger, acquisition, dissolution); or
  5. Having some intellectual property registered in the United States, even if solely exploited offshore – whether or not lawfully; or having some intellectual property exploited in the United States – whether or not lawfully, even if registered offshore including in a tax-advantaged jurisdiction or a bare I.P. holding company; or
  6. Employing United States Citizens or Permanent Residents, even if based/working outside the United States; or
  7. Possessing some other qualifying, identifiable “nexus” of connections to the United States;

should have been aware of, and have appropriately addressed in advance, its actual and potential eDiscovery obligations; failing which it will be forced to face the full spectrum of onerous eDiscovery sanctions then and there available.  Indeed, caselaw and commonsense would tend to indicate prior and near blanket consent to extraterritorial application of the full panoply of U.S. eDiscovery obligations and their related sanctions in most if not all of the above circumstances.

Scenario A.

Let us consider a fictional scenario.  A major Canadian entity (incorporated provincially or federally but with its principal office in Ontario), is hailed into U.S. state court, and the Complaint includes a voluminous request for eDiscovery production.  Being well-advised by U.S. counsel on the suit’s implications for their I.T. department, their legal and compliance departments, and of the necessary and significant costs to be involved in the document review and production – as well as the scope of sanctions for non-compliance through failure to produce and insufficient disclosures, the entity immediately realizes that its information governance regime, as based in and controlled from Canada, is not configured to have collected and preserved the required materials.  This makes speedy production in response to the suit request, a major issue.  They therefore resolve to put up a vigorous defence; reserving for later the Motion to Dismiss for Failure to State a Claim upon which Relief can be Granted.

Assuming no deficiencies in process and service of process, they initiate their motion practice asserting improper venue, lack of personal jurisdiction, lack of subject matter jurisdiction and seeking to compel arbitration in accordance with the underlying contract, and seeking judicial notice of Canadian discovery procedures[7] which they argue should be applied in their case.  U.S. Judges will likely find that the venue is proper, that they have both personal and subject matter jurisdiction – ignoring the arbitration clause on appropriate grounds (first instance matter, public policy, judicial efficiency, undistinguished precedent from another state, or apparent flaw or inconsistency), and that U.S. eDiscovery rules and procedures shall apply.  Best practice would also counsel seeking Additional Time in which to Answer, and quiet but hurried efforts on the back-end, to bring the Canada-bound datasets up to a properly “eDiscoverable” standard.  The bolder entity might even also assert a Civil Rights claim in a U.S. District Court (federal), or a Bill of Rights claim (state or federal).

The Defendant may then seek removal to federal court on appropriate grounds, including any avenue available under an applicable multinational treaty or accord, or any bilateral investment protection agreement.  If removal is unsuccessful and/or a collateral attack is permissible, then a separate action may be commenced with naming of the Canadian government as a necessary party.  Additional joinder of, or intervention may be sought by, other Canadian entities in the same industry, or that foresee themselves facing a similar situation in the future, as well as the European Union, Directorate General for Justice (Privacy and Data Protection Division).

Media publicity will build, interest groups and politicians will get involved, and serious questions will be asked regarding boycotts and embargoes, corporate discrimination, and the unwelcome extraterritorial application of domestic laws as opposed to consensual application of domestic law to domestic and foreign entities as a cost and prerequisite of doing business in a given jurisdiction.

At this point, the crystal ball goes cloudy, and Scenario A will play-out to its yet unknown conclusion.  Major sticking points will revolve around the long-arm jurisdiction of U.S security laws with regard to information held on or passing through servers based in the United States (i.e. a vast majority of the Western World’s email providers – as well as possibly anything and everything physically or electronically sent to the United States in response to an eDiscovery request, which might be subject to warrantless “sniffing expeditions”), and the Canadian and European privacy protection regimes, which are significantly more developed and expansive than anything currently available in the U.S.  This stems from the standard disclosure language seeking “any and all”, and the strong likelihood that fishing expeditions will uncover many other things that are “apparently” protected under those privacy laws.

It is entirely possible that an eDiscovery business segment tailored to U.S. standards will grow and thrive in Canada in the near future; significantly raising the cost for Canadian entities to do business in the U.S. to the extent that some will withdraw.  If Canadian businesses pull back en masse, then U.S. (or European, Asian, African, or Latin American) businesses will step-in and take-up the slack, purchase their assets, and U.S. unemployment numbers will go up or down, as a result of mergers and restructuring.

It is also possible that a political compromise will be reached, with a Canadian version of U.S. eDiscovery that might be or become colloquially known in the United States as “eDiscovery Lite/North”.[8]  If U.S.-style eDiscovery is further exported to Canada, then U.S. discovery experts will find steady business across Canada through service provision, best practices seminars, and publications.  The same will be true for Canadian provides of their model is the one finally favoured for export to the U.S.

Online risks are now much better known and appreciated.

Within the past 10-15 years, judges in many jurisdictions experiencing the internet’s infancy could have been met with a case of online defamation and seen it as “not such a big deal”, no matter how hard counsel and client might attempt to prove otherwise.  I have been there, and it was in the early 2000s!  However, in this increasingly interconnected world where a social/antisocial message or web posting (blog, email, tweet, viral video, text) can inspire worldwide riots within a matter of moments that spread and escalate over many hours and time zones as others are alerted and fired-up in series,[9] and where people can lose both their lives,[10] and their jobs,[11] as a result of some public disclosure of private facts, the bench clearly no longer has that luxury.

Businesses should therefore try to stay ahead of the eDiscovery curve.

Of course, prevention is better than a cure.  Tools for this will range, of necessity, from outright bans, through strong social media usage policies, to increasingly pervasive and intrusive monitoring – both by employers and by governments.  The last option, being relatively easy to maintain and scale-up or -down once commenced, seems increasingly likely to become the new normal with some regulators – albeit in fits and starts,[12] because many medium-as-message consumers who already and quite willingly share voluminous details of their personal work, lives, and relationships online, perceive each incremental step as “not such a big deal”, no matter how hard privacy pioneers might attempt to prove otherwise.

The ball is still in the air on this one.  Although we can prepare policies in advance as doing nothing is excluded as a viable option, we still have to wait for the ball to land.  And even then, it can always roll in any of many unpredictable directions (being round), or be sent flying, once again.  This new world must be brave (and patient),[13] as it slowly (and not always hesitantly) goes where no world has gone before.[14]

******************************************************************************

Author:

Ekundayo George is a sociologist and a lawyer, with over a decade of legal experience including business law and counseling (business formation, outsourcing, commercial leasing, healthcare privacy, Cloud applications, and Cybersecurity); diverse litigation, as well as ADR; and regulatory practice (planning and zoning, environmental controls, landlord and tenant, and GRC – governance, risk, and compliance investigations, audits, and counseling in both Canada and the United States).  He is licensed to practice law in Ontario, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America (U.S.A.).  See: http://www.ogalaws.com

He is an experienced strategic and management consultant; sourcing, managing, and delivering on high stakes, strategic projects with multiple stakeholders and multidisciplinary teams.  See: http://www.simprime-ca.com

Backed by courses in management, organizational behaviour, and micro-organizational behaviour, Mr. George is also a writer, tweeter and blogger (as time permits), and a published author in Environmental Law and Policy (National Security aspects).

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”), in whole or in part for their content, or their accuracy, or their availability.

This article does not constitute legal advice or create any lawyer-client relationship.


[1] Barry Murphy.  Social media and your eDiscovery strategies.  Published on TechRepublic, November 21, 2012.  Online:  >http://www.techrepublic.com/blog/tech-manager/social-media-and-your-ediscovery-strategies/8051?tag=nl.e101&s_cid=e101<.

[2] See Ekundayo George.  Media Effectiveness.  Published on www.ogalaws.com.  At User-generated Legality Issues (UGLIs).  Online: >https://ogalaws.wordpress.com/media-effectiveness/<.

[3] See Crookes v. Newton, 2011 SCC 47, [2011] 3 S.C.R. 269 (decided October 19, 2011).  Online: >http://www.canlii.org/en/ca/scc/doc/2011/2011scc47/2011scc47.html<.

[4] See A.B. v Bragg Communications, Inc., 2012 SCC 46 (CanLII).  Decided September 27, 2012.  Online: >http://canlii.ca/en/ca/scc/doc/2012/2012scc46/2012scc46.html<.

[5] In response to a patron’s bad restaurant review, an Ottawa restaurant owner who created a fake profile and posted fake (and lewd) personal details online, and then transmitted fake email messages to the patron’s employer using that fake profile, has now paid a price.  After being found guilty of defamatory libel on September 6, 2012, “[s]he was sentenced Friday (November 16, 2012) to 90 days in jail and two years probation and ordered to take an anger management course, receive mandatory counselling and work 200 hours of community service”.  She has appealed her sentence.  See CBC News.  Cyberbullying Ottawa restaurant owner gets bail.  Posted on cbc.ca, November 22, 2012.  Online: >http://www.cbc.ca/news/canada/ottawa/story/2012/11/22/ottawa-restaurant-owner-gets-bail-after-libel-sentencing.html <. See also Tony Spears.  Cyberbullying Ottawa restaurateur gets jail time.  Published on http://www.torontosun.com, Friday, November 16, 2012.  Online: >http://m.torontosun.com/2012/11/16/cyberbullying-restauranteur-gets-jail-time<

[6] See Ekundayo George.  What about hospital BYOD?  Published October 7, 2012, on www.ogalaws.wordpress.com Online: >https://ogalaws.wordpress.com/2012/10/07/med-tech-byod-is-really-catching-on/<.

[7] In Ontario, Canada, each party in litigation prepares and serves on the other party/parties an Affidavit of Documents, stating who has what, what is available for disclosure, and what is not, including those over which any privilege is asserted.  There are generally no massive and all-pervasive requests that cut clean across the board.  See R. 30.03(2) – Contents. Then, Requests to Inspect will be served (R. 30.04), and even though the court may still order production, neither its disclosure nor production is an admission of the relevance of any document (R. 30.05).  Rules of Civil Procedure, Ontario. R.R.O. 1990, Regulation 194.  Online: >http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_900194_e.htm<.

[8] Id. Rules of Civil Procedure Ontario.  The Sedona Canada Principles for addressing eDiscovery do exist and are available for incorporation in any Discovery Plan, to which the parties must now agree within a specified time (R. 29.1 – Discovery Plan).  However, the Ontario scheme is more of a gentleman’s agreement formula, and the court is reluctant to intercede or force the issue (except in preparation for trial as under R. 20.05), as opposed to the U.S. model where judges are and remain quite active at all stages of the matter and not every litigious matter is characterized by or conducted with, a high level of civility.  See also The Sedona Conference, 2012.  E-discovery Canada – About.  Published on lexum.org.  Online: >http://www.lexum.org/e-discovery-web/about.do<.

[9] Cartoons, movies, new laws, beauty pageants, governments old and new, and new Constitutions are amongst the many items to which some people, somewhere, have taken some sort of offence, of late and to date.

[10] Kelly Heyboer/Star Ledger.  Rutgers freshman is presumed dead in suicide after roommate broadcast gay sexual encounter online.  Posted on www.nj.com, Wednesday, September 29, 2010.  Online: > http://www.nj.com/news/index.ssf/2010/09/hold_new_rutgers_post.html<.

[11] Noah Shachtman and Spencer Ackerman.  Petraeus Resigns From CIA After Feds Uncover ‘Extramarital Affair’.  Published November 9, 2012, on www.wired.com.  Online: >http://www.wired.com/dangerroom/2012/11/petraeus-down<.

[12] Matt Sledge.  ECPA Amendment Passes, As Senate Judiciary Votes To Require Warrant For Email Snooping.  Published November 29, 2012, on www.huffingtonost.com.  Online: > http://www.huffingtonpost.com/2012/11/29/ecpa-electronic-communications-privacy-act_n_2211889.html<.

[13] This is a gratuitous tribute to the futuristic 1931-1932 novel by Aldous Huxley, entitled Brave New World.  Online: >http://en.wikipedia.org/wiki/Brave_New_World<.

[14] This is a gratuitous tribute to the original Star Trek series of the science fiction entertainment franchise bearing the same name or a related name, and its motto for the original cast under Captain James Tiberius Kirk (William Shatner), which was: “to boldly go where no man has gone before” (later changed to “no one” in its subsequent spinoffs with a more politically correct, gender neutral appeal).  Online: >http://en.wikipedia.org/wiki/Star_trek<.

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