eDiscovery and Electronic Evidence 2020

Course Chair
Graham J. Underwood — Legal Services Branch, Ministry of Attorney General, Victoria

About the Course Chair

Graham Underwood is a barrister with the Province of BC's Ministry of Justice and Attorney General. He has practised solely in the area of civil litigation for the Province for the past 19 years. Prior to that, he was a legal officer with the Judge Advocate General of the Canadian Armed Forces, and was in private practice for 14 years.

Mr. Underwood's interests include the law of evidence and information management. He is the co-author of Electronic Evidence in Canada, which was published by Carswell in 2010. He is also a frequent speaker at conferences and seminars on litigation and information management in the public sector and for CLEBC. Mr. Underwood is the representative for the Province of BC on the Federal/Provincial/ Territorial Working Group on e-Discovery and a member of the Uniform Law Conference of Canada electronic discovery working group.

Faculty
Komal Jatoi — Dentons Canada LLP, Vancouver
Crystal O’Donnell — CEO and Senior Counsel, Heuristica Discovery Counsel LLP, Toronto
Ken Lew — Manager, IT Forensics and Litigation Support, MNP, Vancouver
Brian Pel — COO and Senior Counsel, Heuristica Discovery Counsel LLP, Toronto
Jonathan G. Penner — Ministry of Attorney General, Victoria
David Wotherspoon — Dentons Canada LLP, Vancouver

Click here for full faculty bios

Welcome and Land Acknowledgement

Graham J. Underwood — Legal Services Branch, Ministry of Attorney General, Victoria

The Principles of eDiscovery Practice

• Sedona Canada
• BC Electronic Evidence Directive
• Ontario Rules of Civil Procedure for eDiscovery
• Uniform Law Conference of Canada

Crystal O’Donnell — CEO and Senior Counsel, Heuristica Discovery Counsel LLP, Toronto

Rule 7-1 Disclosure (The Legal Side)

• the scope of the obligation to disclose
• the Rule
• proportionality with electronically stored documents
• what is sufficient?
• legal obligations—and professional ethics aspect

Jonathan G. Penner — Ministry of Attorney General, Victoria

BREAK

Disclosure and Production of Electronic Documents (The Operational Side)

• sources and where to look
• defensible collection
• preserving the integrity of data
• reviewing e-docs for relevance and privilege
• precautions/litigation holds
• a defensible system of disclosure—documenting what's been done

Crystal O’Donnell — CEO and Senior Counsel, Heuristica Discovery Counsel LLP, Toronto
Brian Pel — COO and Senior Counsel, Heuristica Discovery Counsel LLP, Toronto

Using Electronic Documents at Trial

• pre-trial authentication of Electronically Stored Information (ESI)
• fundamental concepts of admissibility
• ESI and real evidence
• ESI as documentary evidence
• ESI as demonstrative evidence
• practical aspects

Graham J. Underwood — Legal Services Branch, Ministry of Attorney General, Victoria

NETWORKING LUNCH (provided)

Ethical Issues with Respect to Electronic Evidence

• role of counsel—legal advice in context of disclosure obligations/privilege
• properly advising the client with respect to disclosure
• ethical issues—preserving privilege while using outside vendors

Crystal O’Donnell — CEO and Senior Counsel, Heuristica Discovery Counsel LLP, Toronto

Challenging eDiscovery and Electronic Evidence

• applications to compel disclosure of ESI—social media and other sources of ESI
• requesting and disclosing metadata, ESI in native form
• preserving ESI for use as evidence
• challenging the admissibility of electronic evidence
• authenticity vs. reliability concerns
• admissibility vs. weight

Komal Jatoi — Dentons Canada LLP, Vancouver
David Wotherspoon — Dentons Canada LLP, Vancouver

BREAK

Digital Forensics

• forensics: acquiring data, preserving data
• digital forensics in criminal law—from child pornography to digital fraud

Ken Lew — Manager, IT Forensics and Litigation Support, MNP, Vancouver

Expert Evidence in the Use of Electronic Evidence

• meeting the legal requirements for admissibility
• when you need to call in an expert
• proving authenticity/reliability—expert evidence needed?
• integrity—Canada Evidence Act

Moderator: Graham J. Underwood — Legal Services Branch, Ministry of Attorney General, Victoria
Jonathan G. Penner — Ministry of Attorney General, Victoria
David Wotherspoon — Dentons Canada LLP, Vancouver

Closing Remarks

Graham J. Underwood — Legal Services Branch, Ministry of Attorney General, Victoria