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January 24, 2011 - Volume 2, Number 1

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Legal Risk Management and Compliance


  • Gutbir v. University Health Network, 2010 ONSC 6752
  • Many medial procedures and hospitalizations may not have the desired outcome, but that does not automatically lead to the conclusion there will be litigation.

    The plaintiff brought a claim for medical negligence against the defendant regarding her birth at Toronto General Hospital in 1984.

    When the plaintiff was born, it was hospital policy to keep a baby’s medical chart with that of its mother, and destroy patient medical documentation if more than 10 years had elapsed since the patient was discharged. In the case of a patient less than 18 years of age, the records could not be destroyed until 10 years from the date the child turned 18.

    In 2000, the hospital retained a third-party service provider to maintain its records. In the initial purge of records, the records of the plaintiff were destroyed with those of her mother. Hospital administration acknowledged that this was “a breach of the hospital’s criteria for destruction as [the records] should have been kept for 10 years beyond her 18th birthday, or 2012.”

    At the conclusion of trial, the plaintiff sought to raise the issue of spoliation. The plaintiff argued that “the jury ought to be instructed that they can draw an adverse inference from the fact that the hospital destroyed the evidence”.

    Deciding in favour of the hospital, the Court considered the Alberta Court of Appeal decision in Mcdougall v. Black & Decker Canada Inc. (2008), ABCA 353, which

    sets out the criteria that must be met for the adverse inference to be drawn: there was an intentional destruction of relevant evidence; the destruction occurred when litigation was existing or pending; and it is reasonable to draw the inference that the evidence was destroyed to influence the outcome of the litigation.

    The Court also looked to the recent Ontario case of Muskoka Fuels v. Hassan Steel Fabricators Ltd., [2009] OJ No 4782, where it was noted that

    in order to rely on the evidentiary doctrine of spoliation, the party who wishes to rely on it must establish that the necessary elements ‘starting with evidence of intentional destruction…’ An adverse inference cannot be drawn simply because evidence was destroyed.”

    As the destruction of evidence in this circumstance was not done intentionally or in order to influence the litigation, the Court determined that “there is no basis in law on which a jury could draw the negative spoliation inference arising from the destruction of hospital records.”

  • Jannx Medical Systems Inc. v. The Methodist Hospitals Inc., N.D. Ind. 2010 November 17, 2010
  • The defendants in this action have brought a motion to compel discovery by the plaintiff. In particular, the plaintiff had not yet specifically responded to the defendants’ interrogatories, nor had the plaintiff provided production of documents in a reasonable electronic form.

    It was alleged by the defendants and established on the motion that the plaintiff had maintained certain information “in a fully searchable and manipulable electronic format”. However, the plaintiff had produced this information to the defendants in .pdf format, “destroy[ing] the defendants’ ability to effectively search or analyze the information.

    Citing The Scotts Company LLC v. Liberty Mutual Insurance Company, 2007 WL 1723509, *4 (SD Ohio June 12, 2007) and the Advisory Committee Note on the 2006 Amendments (Fed. R. Civ. P. 34), the Court recognized that “there are circumstances in which .pdf format may satisfy discovery obligations”, but that “if the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.” Therefore, the Court granted the defendants’ motion to compel, ordering the plaintiff to “produce responsive information in an electronic database format that allows the information to be reasonable usable”.

    The defendants were also awarded the reasonable costs, including attorney’s fees, of the motion.

  • Federal Trade Commission v. Church & Dwight Co., 2010 U.S. Dist. LEXIS 115205 (D.D.C. Oct. 29, 2010)
  • Church & Dwight Co. Inc. (“C&D”) sells Trojan brand condoms in the United States (“US”) and in Canada. The Federal Trade Commission (the “FTC”) has commenced an investigation into the competitive behaviour of C&D in the US marketplace. As part of the investigation, the FTC has subpoenaed a number of relevant documents, including documents and information from C&D’s Canadian operations.

    The conclusion reached by the Court was that the Canadian documents are sufficiently relevant to the investigation and, as C&D has not sufficiently shown that production of documents and information from their Canadian subsidiary is unduly burdensome, the Court ordered C&D to comply with the FTC subpoena.

    Addressing C&D’s claim that the production of documents from their Canadian subsidiary would be overly burdensome, the Court noted that “some burden on the subpoenaed party is to be expected” and that the subpoenaed party must prove that compliance “threatens to unduly disrupt or seriously hinder normal operations of business” in order to be excused from performance. However, the court refers to The Sedona Conference Commentary on Proportionality in Electronic Discovery, Principle 6 Technologies to reduce cost and burden should be considered in the proportionality analysis, pointing out that “there may be electronic means of searching the data that the parties can mutually agree upon to keep the burden to the minimum”.

    C&D asserts that the Canadian subsidiary has a different document management and retention system from C&D in the US. the FTC proposed that the review of documents in Canada could be limited through search terms. C&D objects, as C&D Canada's document management system does not allow for keyword searching to limit the review process. However, these claims are not supported by declarations or other evidence that are probative of the costs C&D would have to bear.

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Gowlings Records Management group provides project management services designed to support scoping, planning, and execution of an E-Discovery project. Contact us today for more information.


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Gowlings Records Management Services Group

Gowlings’ Records Management Services Group is comprised of lawyers and technical specialists skilled in dealing with paper and digital records, either in the context of pre-claim risk mitigation or as records counsel in complex litigation.  Specifically, we offer the following services:

  • Pre-claim risk assessment of records management policies and procedures.
  • Records management consulting services, including review and analysis of existing policies and procedures, developing recommendations for revisions to policies and procedures, assisting with implementation of revised polices and procedures, and continuing education and audits of implemented records management program to ensure compliance.
  • Developing and implementing litigation hold policy and procedure.
  • Post-claim records management services, including scanning and coding of paper records, processing and review of electronically stored information, consulting on records management issues throughout litigation process and assisting lawyers with presenting records at hearings.

Visit our webpage at: http://www.gowlings.com/Services/records-management-services

For more information, please contact:

Louis A. Frapporti
Partner & National Team Leader

Christopher Purdon
Litigation Support Manager

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