MD#7 Model preservation order - public comment draft

PUBLIC COMMENT DRAFTSeptember 21, 2007ONTARIO E-DISCOVERY IMPLEMENTATION COMMITTEE MODEL DOCUMENT #7: PRESERVATION ORDER Purpose of the document As soon as litigation is reasonably anticipated, parties must consider their obligation to take reasonable and good faith steps to preserve potentially relevant documents, including 1electronically stored information. Usually, it is to a party’s strategic advantage to preserve all potentially relevant documents as soon as possible. As well, where potentially relevant documents are destroyed or lost rather than being preserved, a party risks being exposed to allegations of spoliation of evidence. The consequences of spoliation can be very serious. The court may direct the drawing of an adverse inference from the destruction of the documents, may require payment of the opposing parties’ costs or, in extreme cases, may dismiss a claim or strike a defence, among other things. However, preservation steps can be onerous and expensive, and parties may wish to define or limit their preservation obligations by agreement with the other side or by court order. This model preservation order is designed to be used in cases where the parties have been unable to agree upon appropriate preservation steps, or where the parties wish to have their preservation agreement endorsed by the court. This model order assumes that the parties do not wish to take extraordinary steps in preserving metadata, or ...