(MD#1 Model meet and confer agreement - public comment dra 205)

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PUBLIC COMMENT DRAFT September 21, 2007 ONTARIO E-DISCOVERY IMPLEMENTATION COMMITTEE MODEL DOCUMENT #1: MEET AND CONFER AGREEMENT Purpose of the document It is now recognized as a discovery best practice that the parties should “meet and confer” early in the litigation process, and thereafter as appropriate, to discuss and hopefully agree upon the requirements for documentary discovery. This model meet and confer agreement is designed to confirm points of agreement between the parties with respect to the preservation, production and use of documents, including all types of electronically stored information, within an action or other legal proceeding. More detail on the purpose of the document is set out in Section 2.1 of the model agreement. Before attending a meet and confer session, counsel should fully familiarize themselves with their client’s document systems, including their IT architecture and their records retention systems. Counsel should attend the meet and confer session with this information available. It is recommended that, in appropriate cases, especially those involving significant quantities of electronic records, counsel should attend the meet and confer session with a client representative who is directly familiar with the IT issues associated with preserving and collecting those records. To the extent required, before attending the meet and confer session counsel should already have taken steps to assist their client in preserving documents that are relevant to the litigation. Proportionality In any legal proceeding, the parties should ensure that all steps taken in the discovery process are proportionate, taking into account, among other things, the importance and complexity of the case, the amounts and interests at stake, and the costs, delay, burden and benefit associated with each step. The principle of proportionality is relevant, in the first instance, in determining whether it is useful or necessary to confirm the results of a meet and confer session in a written agreement such as this one. Parties and their counsel will want to consider whether to enter into a formal written agreement regarding documentary discovery. In some cases, such as those involving a limited number of documents, or a small dollar value, it may not be appropriate or necessary to enter into a detailed meet and confer agreement. 2 PUBLIC COMMENT DRAFT September 21, 2007 In cases where it is appropriate to enter into a meet and confer agreement, the proportionality principle is relevant in identifying the issues on which agreement should be sought, and in determining the scope of the documentary discovery obligations to which the parties should agree. Annotations Annotations are included at various points throughout the model document, identifying issues that the parties may wish to consider. Many of the annotations refer to the February 2007 public comment draft of The Sedona Canada Principles Addressing Electronic Document Production (the “Sedona Canada Principles”). The Sedona Canada Principles are a set of national guidelines for e-discovery in Canada, which reflect both existing legal principles and a set of identified best practices. The Sedona Canada Principles are intended to be compatible with the discovery rules in all Canadian jurisdictions. The public comment period for the draft Sedona Canada Principles concludes in 2007, and a finalized version of the Sedona Canada Principles will be issued thereafter. This model document will then be updated to reflect any relevant changes. 3 PUBLIC COMMENT DRAFT September 21, 2007 [Court File No.] ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: [PLAINTIFF(s)] Plaintiff(s) -and- [DEFENDANT(s)] Defendant(s) AGREEMENT REGARDING THE PRESERVATION, PRODUCTION AND 1 USE OF ELECTRONICALLY STORED INFORMATION (Dated as of , 20) Preamble: A. The Parties (as defined below) met on a without prejudice basis on [ (date)] and conferred regarding matters relating to the preservation, production and use of documents, including electronically stored information, in the Action. B. The Parties wish to record their formal agreement with respect to certain documentary discovery issues addressed at their meeting. 2C. [Insert any further preamble here. ] 1. Parties 1.1 The parties to this agreement (the “Parties”) are: 1 Principle #3 of the Sedona Canada Principles states that “Counsel and parties should meet and confer as soon as practicable and on an ongoing basis, regarding the identification, preservation, collection, review and production of electronically stored information.” This document is designed to confirm those points on which the parties reach agreement. The parties may wish to have several meet and confer sessions over time (as suggested in Principle #3), and to enter into more than one agreement. The parties may also wish to use only some parts of this model agreement at any one time. 2 The parties may wish to record, in the preamble, any assumptions relied upon in arriving at this agreement. 4 PUBLIC COMMENT DRAFT September 21, 2007 2. Purposes of the agreement 2.1 The purposes of this agreement are: 2.1.1 to prepare a joint plan for the preservation, production and use of documents, including electronically stored information, in the Action, in order to: (a) ensure an effective documentary discovery process, and (b) minimize the time and expense required for the Parties to comply with their documentary discovery 3 obligations; 2.1.2 to ensure that the steps taken in the documentary discovery process in the Action are proportionate, taking into account the nature and scope of the litigation, the relevance of the available documents, the importance of the documents to the adjudication of the case, and the costs, burden and delay that 4may be imposed on the parties to deal with electronically stored information; and 2.1.3 to identify any areas of disagreement between the Parties regarding: (a) the proper scope of documentary discovery in the Action, or (b) the manner in which documents are to be preserved, produced and used in the Action. 53. Adherence to protocol 3.1 Subject to the terms of this agreement, the Parties agree to adhere voluntarily to the following protocol, guideline or other document regarding the preservation, 3 Principle #1 of the Sedona Canada Principles states that “Electronically stored information is discoverable.” 4 Principle #2 of the Sedona Canada Principles states that “In any proceeding, the parties should ensure that steps taken in the discovery process are proportionate, taking into account (i) the nature and scope of the litigation, including the importance and complexity of the issues, interests and amounts at stake; (ii) the relevance of the available electronically stored information; (iii) its importance to the court’s adjudication in a given case; and (iv) the costs, burden and delay that may be imposed on the parties to deal with electronically stored information.” Principle #2 applies throughout this agreement. Counsel should consider the provisions of the applicable rules of court or provincial practice directions that apply and may affect the scope of e-discovery production for particular claims. See, for example, the B.C. and Ontario rules applicable to claims of less than $100,000.00 and $50,000.00 respectively and the B.C. Practice Direction Re: Electronic Evidence (effective July 1, 2006). 5 To be included only where the Parties are agreeing to adhere voluntarily to a particular protocol, guideline, etc. - for example a more detailed preservation agreement (such as the Ontario E-Discovery Implementation Committee’s Model Document #2: Preservation Agreement), a practice direction used in another jurisdiction, or an e-discovery protocol prepared by one of the parties or by a professional organization relating to such matters as preservation or collection methods. 5 PUBLIC COMMENT DRAFT September 21, 2007 production or use of electronically stored information in litigation proceedings: (the “Protocol”), a copy of which is attached to this agreement as Appendix “B”. 4. Discovery rights otherwise not affected 4.1 Except as provided in this agreement, nothing in this agreement derogates from: (a) the legal rights of the Parties with respect to documentary and oral discovery in the Action, or (b) the right of any Party to move before the Court for enforcement of those rights. 4.2 Unless expressly specified, nothing in this agreement affects the legal obligation of each Party to take reasonable steps to preserve, disclose and produce any document in the Party’s possession, power or control that the Party knows exists and knows is relevant to the Action. 4.3 This agreement is made in lieu of the Parties seeking a formal order from the Court with respect to the matters agreed upon. Any Party may make a motion to the Court to compel another Party to take the steps contemplated by the agreement, and the Parties agree that the Court may take the existence of the agreement into account in determining whether to grant the order sought. The respondent on such a motion may seek to justify its non-compliance with the agreement on the basis of, among other things, any information that was unknown or unavailable to the Party at the time the agreement 6was entered into. 4.4 Breach of this agreement does not, in and of itself, give rise to a right to damages or any other monetary relief, or to injunctive relief, although the Parties agree that the 6 Principle #11 of the Sedona Canada Principles states in part that “Sanctions should be considered by the court wh