In Bard v. Canadian Natural Resources (Bard), the Court of Queen’s Bench of Alberta (Court) ruled that certain documents were to be produced in native format, despite what was set out in a discovery agreement between the parties. Following the Court’s ruling in Bard, litigants should consider how they want to produce, receive and use documents early on in a case, to avoid additional motions.

DOCUMENT PRODUCTION: WHAT ARE THE OPTIONS?

In litigation, parties often enter into discovery agreements and one of the items addressed is how documents are to be produced. It is important to think about how you will want to use documents early on in a case and before deciding on how they will be produced. In general, there are two common formats for the production of documents:

• The first is in TIFF format. A TIFF is a tag image file format, which is a scanned copy of the document. The text in these documents can be searched, but there is little other usability for the file.
• The second is in native format, which means the document is produced in the form it is maintained on the producing party’s systems. An Excel document is produced in Excel format. A Word document is produced in Word format. These documents are fully searchable and for documents like Excel, you can sort and filter the documents’ contents.

There is a movement in the legal community to produce all documents in native format. The Sedona Canada Principles recommend that electronic documents be produced in native format when possible.  The Sedona Canada Principles aim to aid members of the Canadian legal community when dealing with the identification, collection, preservation, review and production of electronically stored information.

BUT DIDN’T THE PARTIES HAVE AN AGREEMENT?

The parties in Bard had entered into a discovery agreement to produce the documents as TIFF files, but the plaintiffs then sought an order compelling the defendants to produce the documents — primarily Excel and other database-type documents — in their native format.

The defendants argued they had complied with the discovery agreement and had no obligation to produce the documents in any other format, but the Court disagreed.  Since the production of Excel documents (and other similar types of documents) as TIFF files means you cannot search them, sort them, or manipulate the data in any way, the Court held that not producing them in their native format meant the plaintiffs were not given meaningful access to relevant material records.

The case is illustrative of the movement towards producing documents in native format.