What To Do When The Other Side Says: "My Client's Files Have Been Corrupted"

Co-author: David Sharpe, LL.B., M.A. – Sharpe-edc | EDiscovery Consulting & Project Management

When it comes to evidence in digital form - we'll call it electronically stored information ("ESI") - there are many templates available for processes and protocols under the Sedona Principles and, in Ontario, the Rules of Civil Procedure (which incorporate the Sedona Principles). See, for example, the Ontario E-Discovery Implementation Committee's Model Precedents" on the Ontario Bar Association's website¹.

However, some situations in day-to-day litigation arise that existing templates do not cover. One of the most common is the "My client's files have been corrupted" scenario. Correspondence comes in the mid or even later stages of a lawsuit. Opposing counsel announces that the client has discovered some ESI that had previously gone undiscovered or unreported. But, the client has told counsel, the ESI is inaccessible or somehow corrupt.