Legalviews Personal

It is now customary for litigation counsel to send each other copies of their own producible records (downloads, scans, or photocopies). So the recipient of those copies usually does not demand the right to attend and see any of the originals. But not attending may be a mistake.

Of course most of a suit’s producible records are neither very important, nor contentious, nor dubious. So counsel do not want to waste days and thousands of dollars getting or seeing originals of routine correspondence. But one or two fairly short attendances to see originals are often time very well spent. There are a host of reasons for that. Here are some.

1. Glancing over the originals will give a good impression of how organized and thorough the opposing counsel is. More important it suggests whether the host counsel and their client have done a good job of searching for and finding all producible records. And whether the records have been marked, e.g. given distinctive numbers.

2. Very few litigants find or identify all their producible documents. Sometimes very important records, or even whole collections of them, are omitted. Even if you have learned that, you probably need proof for an application to get the rest. Often the evidence that something is omitted is a detail on another routine record produced. For example, a reference in it to another record, another file number or project number or order number, or incorrect topic headings suggesting an incomplete email string. Or staple holes or punched holes suggesting former connection with files or other records. If one producible record was not disclosed, it probably lives with some other producible records also not disclosed. A record rarely lives all alone. Some lawyers think that the only way to look for relevant records is to guess at a phrase or two and use them to ask a computer to make a Boolean search. That rarely leads to all the relevant records. The “old-fashioned” search methods involving thinking, and asking questions, and looking at known records, are still needed.

3. Finding what persons were involved and who received, read or commented on certain records, is a vital step in discovery. If a record is really important, all the copies of it and who received or created it, can be important. It helps you plan whom to examine for discovery (question). And if there are several copies of an important record, often some will have added comments, whether by computer or by ballpoint pen.

4. That is especially important where the records were originally electronically composed, or were electronically sent or received. The distinction in computers between an “original” and a copy is even more important than it is for paper communications. For example, the “native format” of an email, a Word document, or an Excel spreadsheet. Often it contains metadata about its creation date, its author, its editor, and times of sending and of receipt. A later print-out, download, or scan will very often change or omit such information.

5. A truly important record needs careful attention to the original in the manners described in numbers 2, 3 and 4 above. Its original also needs inspection for other things, such as

whether the copy provided is complete, and in the right order of pages, and with no words cut off. Some records have things on the back, such as printed conditions.

whether any writing is in a different color or style, suggesting later insertions or deletions. Or even negative amounts in accounting records.
whether the supposed original really is an original, or is itself a copy or a scan. If so, where is the original? Was it discarded or torn up, or pledged, or given away? That can be extremely important. Or does it contain something not disclosed here? (See items a. and b. above.) In Alberta law, usually a copy is not admissible evidence of a record. And affidavits of records on both sides create admissions of authenticity (by you for example), unless the contrary is stated.

6. Dates on important records are often inaccurate, for a whole host of reasons, some clerical, some formalistic, and some computer quirks. Yet in commercial litigation, timing and order of communications can be decisive.

7. A copy or scan or cross-copy of a record may have had a very different life and circulation than the original, and involve different people. Use of computers makes that more common, not less.

You may think that the concerns and dangers above are theoretical or unlikely actually to occur. But I spent years litigating with discovery of records and examining for discovery (questioning). I have personally encountered all of the paper problems, in actual Alberta lawsuits. So have other counsel getting electronic discovery in recent years. And I have encountered other reasons for demanding originals too, but this blog is already long enough.

– Hon. J.E. Côté

INSPECTING OPPONENT’S RECORDS