"If you want to keep a secret, you must also hide it
from yourself" - George Orwell, 1984
It comes as no surprise that sweeping technological advances in
the past decade have changed the way Canadians do business. As a
result, commercial litigators now know that when disputes arise, a
good portion of the relevant evidence will be in electronic form.
Paper is increasingly on its way out of most businesses, replaced
by employee laptops and tablets, smartphones, servers, and cloud
storage.
According to the Rules of Civil Procedure all documents
relevant to the issues in dispute in a parties' possession or
control must be produced to the other side as part of the
"discovery" (i.e. disclosure) process. In a world where
damaging documents or emails can be deleted in the blink of an eye,
hard-drives can be scrubbed, and passwords and encryption keys can
be withheld or conveniently "forgotten", lawyers often
face an uphill battle in obtaining the preservation and
