According to Rule 30 of the Rules of Civil Procedure (the “Rules”), every “document” relating to any matter at issue in an action that is or has been in the possession, control or power of a party to the action must be disclosed to the other party, whether or not privilege is claimed in respect of the document.

Rule 1.03 of the Rules defines the term “document” to include data and information in electronic form. Accordingly, an email is considered to be a “document” within the Rules of Civil Procedure for the purposes of discovery. 

However, while the existence of every email relevant to an issue in an action must be disclosed to the other party, not every relevant email must be produced to the opposing party. 

Two very important exceptions exist to the obligation of a party to produce emails relevant to an issue in an action:

Emails delivered in anticipation of litigation do not have to be produced to the opposing party. In assessing whether an email is subject to litigation privilege, Ontario courts apply the “dominant purpose” test. The test essentially states that litigation-privileged documents are documents which were produced or brought into existence either:

All communications between a solicitor and client (or an agent for the client) for the purposes of giving or receiving legal advice, are absolutely privileged, unless the privilege is waived by the client.

Every business should consider formulating an official document-retention policy to avoid the pitfalls of not having such a policy in place when litigation arises. The destruction of paper or the deletion of electronic documents leads to a rebuttable presumption by Ontario courts that the documents were unfavourable to the party who cannot produce the document.

What better way to rebut this presumption than to demonstrate that the documents were destroyed or deleted, as the case may be, in accordance with a document retention policy put in place prior to the dispute arising? 

At a minimum, any document-retention policy should address how electronic documents should be stored, when electronic documents should be destroyed and what to do with electronic documents when litigation arises.

In addition to emails, other forms of electronic documents are subject to discovery. Recently, an Ontario judge ordered the plaintiff in Leduc v. Roman to produce private Facebook postings to the defendant. In Leduc, the plaintiff was involved in a car accident with the defendant in February of 2004 and sued for loss of the future enjoyment. After the accident, Mr. Leduc posted a variety of pictures on his private Facebook page of his various activities depicting his after the accident.

It is clear that emails are considered “documents” as that term is defined in the Rules. The test to determine whether an email must be disclosed is whether the email is relevant to a matter at issue in the action and whether the email is subject to litigation or solicitor-client privilege. 

Businesses need to educate their employees on the discoverability of email communications in the civil litigation process and should seriously consider adopting a document-retention policy to avoid any adverse inferences when an email cannot be produced because it has been deleted.

The following issues, among others, should be addressed in a document-retention policy:

·         How often should you delete emails?

·         Should sensitive electronic documents be marked confidential?

·         Is the disclaimer at the bottom of an email of any force or effect when the email is forwarded to a third party?

Please contact John Moher to discuss the implementation of your document-retention policy.