Do I have to produce electronic records like emails and texts in an Ontario lawsuit?

Yes. Electronic records — including emails, text messages, instant messages, voicemails, spreadsheets, and files stored on computers or in the cloud — are documents for purposes of Ontario discovery. The obligation to produce relevant documents applies equally to paper and electronic records.

E-discovery (electronic discovery) can be challenging because electronic records are often voluminous, may exist in multiple locations, and can be difficult to search or organize. Ontario courts have issued guidelines for e-discovery to help parties manage this process proportionately. The guidelines encourage parties to cooperate early in developing a plan for searching, collecting, and reviewing electronic records.

If you anticipate litigation, you should preserve electronic records immediately — including personal devices and cloud accounts if they contain relevant information. Deleting emails or texts after litigation has started or is reasonably anticipated can result in serious consequences, including adverse inferences at trial. A litigation lawyer can help you implement a proper e-discovery process and develop a proportionate plan for managing electronic records.