00. ACL3 Standard Letters List Jan 2013 - Korbitec Inc. Standard Letters.pdf · Standard Letters Index 1. Plea din gs 1.1 Statement of Claim 1.1.1 Client - Send draft claim for comments

StandardLetters

Standard Letters Index

1 . P l e a d i n g s

1.1 Statement of Claim1.1.1 Client - Send draft claim for comments1.1.2 Client - Send final copy of claim1.1.3 Client - Advise claim was issued1.1.4 Client - Advise claim was served

1.2 Statement of Defence1.2.1 Client - Send draft defence for comments1.2.2 Client - Send final defence and advise will serve1.2.3 Client - Advise received defence of other party1.2.4 Lawyer - Serve intent - advise preparing defence1.2.5 Lawyer - Demand defence or note in default

2 . A f f i d a v i t o f D o c u m e n t s

2.1 Client - Explain purpose and request documents2.2 Client - Additional request for documents2.3 Client - Provide draft and request comments2.4 Lawyer - Send draft and provide sworn at discovery2.5 Lawyer - Ask to be provided within two weeks2.6 Lawyer - Threaten motion if not provided2.7 Lawyer - Request documents listed in Schedule A

3 . E x a m i n a t i o n s

3.1 Schedule Examinations3.1.1 Court Reporter - Confirm date with reporter3.1.2 Client - Advise of exam date of other party3.1.3 Client - Explain examinations for discovery3.1.4 Lawyer - Confirm exam date of his-her client

3.2 Undertakings3.2.1 Client - List of undertakings - simple3.2.2 Client - List of undertakings - explain3.2.3 Client - Reminder to answer undertakings3.2.4 Lawyer - Undertakings from handwritten notes3.2.5 Lawyer - Undertakings from review of transcripts3.2.6 Lawyer - Advise answers are not complete3.2.7 Lawyer - Reminder to provide answers3.2.8 Lawyer - Request answers and threaten motion

3.3 Transcripts3.3.1 Client - Transcript of client3.3.2 Client - Transcript of other party

3.4 E-Discovery3.4.1 Memorandum to Corporate Client Regarding Documentary Discovery3.4.2 Memorandum to Individual Client Regarding Documentary Discovery

3.4.3 Preservation Letter (To be Sent to Opposing Counsel)3.4.4 Preservation Letter (To be Sent to Defendant or Proposed Defendant)3.4.5 Letter Confirming Discovery Agreement

4 . O f f e r t o S e t t l e

4.1 Client - Confirm instructions to make offer4.2 Client - Send copy of offer for approval4.3 Client - Send copy which will mail in seven days

5 . P r e t r i a l C o n f e r e n c e

5.1 Client - Advise of pretrial date5.2 Client - Send pretrial memorandum

6. S i m p l i f i e d P r o c e d u r e

6.1 Letter to Lawyer consent to Transfer file to Small Claims6.2 Letter to Court re transfer of file to Small Claims6.3 Advise of Pre-Trial date6.4 Explain stages of lawsuit

7 . L i s t e d f o r T r i a l

7.1 Client - Advise trial record served by us7.2 Client - Advise trial record served by other lawyer7.3 Client - Advise of assignment court date7.4 Client – Summons To Witness

8 . O r d e r s - J u d g m e n t

8.1 Client - Send client draft order - drafted by us8.2 Client - Send client draft - drafted by other lawyer8.3 Client - Send client copy of issued order8.4 Lawyer - Ask other lawyer to approve draft order8.5 Lawyer - Approve order drafted by other lawyer8.6 Lawyer - Send other lawyer copy of issued order8.7 Court – Issue and Enter Order

9 . E s t a t e s

9.1 Request Certificate of Appointment from Court - With a Will9.2 Request Cert of Appointment from Court - Without a Will9.3 Residual Beneficiary Initial Letter - With a Will9.4 Beneficiary Initial Letter - Without a Will

1 0 . E n f o r c e m e n t o f O r d e r

10.1 Client - Advise of options for enforcement10.2 Client - Advise noted in Default10.3 Client - Advise obtained Default Judgment10.4 Client - Advise of Service Of Garnishment10.5 Client - Advise Writ filed

1 1 . C o u r t

11.1 Advising Matter Settled11.2 Advising Matter Settled and Including Order

1 2 . M i s c e l l a n e o u s

12.1 Client - Confirm no instructions12.2 Client - Explain stages of lawsuit12.3 Client - Explain Mandatory Mediation12.4 Client - Explain stages of lawsuit - Simplified Procedure12.5 Engagement-Retainer Letter12.6 Lawyer - Advise lawyer is on holidays12.7 Lawyer – Follow Up Letter

1 3 . P e r s o n a l I n j u r y

13.1 Accidental Benefits13.1.1 Insurer - Request Accident Benefit file13.1.2 Client – Informing Client of Defence Medical

13.2 Tort13.2.1 Client - Moving forward with litigation13.2.2 Client - Attendance at Assignment Court13.2.3 Client - Requesting signature on Authorization13.2.4 Client – Summons to Witness Letter13.2.5 Education - Requesting student records13.2.6 Employment - Requesting personnel file from employer13.2.7 Employments - Requesting employment insurance file from Employment Canada13.2.8 Government Agencies - Human Resources Development Canada requesting

Canada Pension disability file13.2.9 Government Agencies - Workplace Safety and Insurance Board requesting file13.2.10 Government Agencies - Social Services requesting file13.2.11 Health Care Institution - Obtain Clinical Notes and Records (re MVA) from hospital13.2.12 Health Care Institution - Obtain Clinical Notes and Records (re MVA) from doctor13.2.13 Health Care Institution - Obtain Ambulance Call Report (re MVA)13.2.14 Health Care Institution - Obtain Physiotherapy Records (re MVA) from physiotherapist13.2.15 Income Tax – CCRA requesting copies of tax returns13.2.16 OHIP - Ministry of Health requesting OHIP decoded list of services13.2.17 OHIP - Ministry of Health requesting subrogation summary13.2.18 Police - Requesting MVA Report from police department13.2.19 Police - Freedom of Information Branch enclosing Authorization13.2.20 Settlement - Thank you letter for providing reports and enclosing payment13.2.21 Court – Advising Matter Settled13.2.22 Court – Issue and Enter Order13.2.23 Lawyer – Follow Up Letter13.2.24 Lawyer – Confirm Attendance at Defence Medical No Transport13.2.25 Lawyer – Confirm Attendance at Defence Medical Requires Transport13.2.26 Lawyer – Notice Letter13.2.27 Pharmacy – Request For Prescription Summary

1 3 . 3 A u t h o r i z a t i o n a n d D i r e c t i o n s

13.3.1 Authorization and Direction to correspond with lawyer13.3.2 Direction and Authorization for employment records13.3.3 Direction and Authorization for income tax returns13.3.4 Direction and Authorization for police report and-or witness statements13.3.5 Direction and Authorization for release of information under the Freedom of

Information Act13.3.6 Direction and Authorization for school records13.3.7 Direction and Authorization to insurer requesting file13.3.8 Direction and Authorization from client for contents of file13.3.9 Direction and Authorization to the Ministry of Health and Long-Term Care (OHIP)13.3.10 Direction and Authorization to release all documents to lawyer

13.3.11 Direction regarding funds13.3.12 Medical Authorization (physical condition-injuries)13.3.13 Direction and Authorization - CRA

14. A c c o u n t s

14.1 Send Accounts14.1.1 Interim Account14.1.2 Disbursement Account14.1.3 Final Account

14.2 Collect Accounts14.2.1 First collection request14.2.2 Second collection request14.2.3 Third collection request14.2.4 Fourth collection request

1.1.1 SEND DRAFT CLAIM FOR COMMENTS

March 8, 2010

Ms. Suzie Smith1 Anywhere StreetToronto ON M3N 3N3

Dear

Re: Suzie Smith ats Robert JonesOur File No.: 1234-001

Based upon the information you provided to me, I have prepared the enclosed draftStatement of Claim for your review and comments. Please review the draft Statement of Claimcarefully to ensure that it is both accurate and complete and then contact me with your comments.

After the draft Statement of Claim has been amended to your satisfaction, I will have itissued by the Local Registrar of the Superior Court of Justice. I will then arrange for a processserver to serve the Statement of Claim.

I look forward to hearing from you within the near future.

Yours very truly,GREENBERG AND GRIFFIN LLP

Donald C. Stien

Encl.

1.1.2 SEND FINAL COPY OF CLAIM

March 8, 2010


Dear Ms. Smith,


Enclosed for your files is a copy of the Statement of Claim I prepared on your behalf. I willarrange for a process server to serve the Statement of Claim. After the Statement of Claim has beenserved, the Rules of Civil Procedure allow a Defendant twenty (20) days to file a Notice of Intentto Defend and thirty (30) days to file a Statement of Defence if a Defendant serves a Notice ofIntent to Defend. I will provide you with a copy of the Statement of Defence for your review andcomments after I receive it.

In the meantime, if you have any questions, please do not hesitate to contact me.


Donald C. Stien

Encl.

1.1.3 ADVISE CLAIM WAS ISSUED

March 8, 2010


Dear Ms. Smith


I am pleased to report that the Local Registrar of the Superior Court of Justice issued yourStatement of Claim on March 2, 2010. I have retained the services of a process server to serveyour Statement of Claim and will report to you further after service has been completed.

In the meantime, if you have any questions, please do not hesitate to contact me.


Donald C. Stien

Encl.

1.1.4 ADVISE CLAIM WAS SERVED

March 8, 2010


Dear Ms. Smith,


On March 3, 2010, Robert Jones was served with the Statement of Claim. Pursuant to theRules of Civil Procedure, Robert Jones has a period of twenty (20) days from the date of service ofthe Statement of Claim to prepare and serve either a Notice of Intent to Defend or a Statement ofDefence. If I am served with a Notice of Intent to Defend, Robert Jones will then have thirty (30)days from the date of service of the Statement of Claim to file a Statement of Defence.

If you have any questions, please do not hesitate to contact me.


Donald C. Stien

Encl.

1.2.1 SEND DRAFT DEFENCE FOR COMMENTS

March 8, 2010


Dear Ms. Smith,


I am pleased to report that I have completed your draft Statement of Defence. Pleasereview the enclosed draft Statement of Defence carefully to ensure it is accurate and complete.

The Rules of Civil Procedure require a Defendant to admit every allegation in aStatement of Defence which is not disputed. In this respect please review paragraph one (1) ofthe Statement of Defence carefully to ensure that you are prepared to make the admissions setout in this paragraph. This review is important since you will not be able to withdraw anadmission once made.

Please provide me with your comments or confirm that the draft Statement of Defence issatisfactory. I will then serve the Statement of Defence.


Donald C. Stien

Encl.

1.2.2 SEND FINAL DEFENCE AND ADVISE WILL SERVE

March 8, 2010


Dear Ms. Smith,


Enclosed is the final version of your Statement of Defence. Please review it once againto ensure it is accurate and complete. Unless I hear from you within five (5) days, I will assumethat the Statement of Defence is satisfactory and will arrange for it to be served and filed with theCourt.

I trust this is satisfactory.


Michael BrownMB/gmEncl.

1.2.3 ADVISE RECEIVED DEFENCE OF OTHER PARTY

March 8, 2010


Dear Ms. Smith,


I have been served with the enclosed Statement of Defence. Please review the Statementof Defence and provide me with your comments.

The Rules of Civil Procedure provide that you are deemed to have denied the allegationscontained in the Statement of Defence. However, if you wish to rely on an alternate version offacts which have not been pleaded in your Statement of Claim, I must prepare a document calleda Reply and serve it within ten (10) days from the date of service of the Statement of Defence.You must therefore inform me immediately if you want me to prepare and serve a Reply.

The next stage in the proceeding is to prepare an Affidavit of Documents in which youlist all relevant documents in your possession, control or power which are relevant to the issuesin dispute in this proceeding. I will be sending you a letter providing further information aboutthe Affidavit of Documents in the near future.

I look forward to hearing from you.



1.2.4 SERVE INTENT – ADVISE PREPARING DEFENCE

March 8, 2010

SENT BY EMAIL TO:

SENT BY COURIER

Mr. Tom MichaelsSmith & PartnersBarristers & Solicitors12345 King StreetHamilton ON M2Y 8G3

Dear Mr. Michaels,


Enclosed please find my Notice of Intent to Defend served upon you pursuant to theRules of Civil Procedure.

I will be meeting with my client shortly to obtain the necessary information to prepare aStatement of Defence.

I assume that you will not take any steps to note my client in default without prior noticeto me.

Please let me know if I can provide any further information.


Donald C. Stien/gm

1.2.5 DEMAND DEFENCE OR NOTE IN DEFAULT

March 8, 2010

SENT BY EMAIL TO:

SENT BY COURIER


Dear Mr. Michaels,


I note that you have not served a Notice of Intent to Defend or Statement of Defencewithin the time provisions contained in the Rules of Civil Procedure. Unless you provide mewith your Statement of Defence within ten (10) days from the date of this letter, I will note youin default and obtain Judgment against you without further notice.

I trust you will give this matter your immediate attention.


Donald C. Stien/gm

2.1 EXPLAIN PURPOSE AND REQUEST DOCUMENTS

March 8, 2010


Dear Ms. Smith,


I have now completed the exchange of Pleadings in this action and am ready to proceed tothe next stage of the proceeding. This stage, called "discovery", consists of two parts: discovery ofdocuments and Examination for Discovery. I will be explaining discovery of documents in thisletter and Examination for Discovery at a later stage.

The Rules of Civil Procedure require that each party complete an Affidavit of Documentswhich lists all of the documents in the possession, control or power of the party which are relevantto the issues in the legal proceeding (even documents that are no longer in the party's possession,control or power must be listed on a separate Schedule). The definition of a document in the Rulesof Civil Procedure is quite broad and includes a sound recording, videotape, film photograph,chart, graph, map, plan, survey, book of account and information recorded or stored by means ofany device. To complete the Affidavit of Documents, you are required to conduct a diligent searchof your records and to make appropriate inquiries of others to determine the existence of allrelevant documents.

Failure to disclose a document could be harmful to your case. At the very least, thesolicitor for the other party could bring a Motion for an Order that you prepare a further and betterAffidavit of Documents and ask to recover the costs the Motion. The Order could allow thesolicitor for the other party to conduct a Cross Examination of you, at your expense, to determinewhether all relevant documents have actually been disclosed.

Furthermore, if a document is favourable to your case but not listed in the Affidavit ofDocuments, you will not be allowed to use that document in support of your case at the trialwithout leave of the trial Judge. If you do not prepare an Affidavit of Documents at all, the solicitorfor the other party could bring a Motion to strike out your Pleadings and obtain Judgment as if theproceeding were unopposed. For these reasons, the preparation of a complete Affidavit ofDocuments is essential.

In addition, you are required to disclose any documents that come into your possession,control or power after you complete your Affidavit of Documents. You should, therefore, keep meadvised of any additional documents as this case proceeds. Once again, if new documents arediscovered and not disclosed to other party, you will not be allowed to rely on the documents attrial without permission of the trial Judge. Please send me copies of all relevant documents withintwo weeks and I will prepare your draft Affidavit of Documents for your review.

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It is very important the integrity of the original documents in your records bemaintained. That means that you should maintain the order in which they are located and be ableto verify the files or locations from which the relevant documents were taken. Of course, great caremust be taken not to lose any documents and it is imperative that no marks or annotations be addedto any originals. If you wish to annotate any documents, please do so only on copies that areclearly marked as copies prepared for the instruction of counsel.




2.2 ADDITIONAL REQUEST FOR DOCUMENTS

March 8, 2010


Dear Ms. Smith,


I confirm that I am waiting for you to provide me with all of the documents in yourpossession, control or power which are relevant to the issues in the legal proceeding. Uponreceipt of these documents, I will be able to prepare your Affidavit of Documents and proceedwith your case.




2.3 PROVIDE DRAFT AND REQUEST COMMENTS

March 8, 2010


Dear Ms. Smith,


I have prepared the enclosed draft Affidavit of Documents for your review. You will notethat it is divided into three schedules:

SCHEDULE A is a list of the documents in your possession and which are not privileged.

SCHEDULE B is a list of the documents in your possession over which a claim ofprivilege is made.

SCHEDULE C is a list of the documents which are no longer in your possession, controlor power.

Please review the draft Affidavit of Documents and advise me within the next weekwhether it is complete or whether any additional documents need to be listed. Please keep inmind my earlier discussions about your obligation to disclose all relevant documents and theconsequences for failing to do so.




2.4 SEND DRAFT AND PROVIDE SWORN AT DISCOVERY

March 8, 2010

SENT BY EMAIL TO:

SENT BY COURIER


Dear Mr. Michaels,


Enclosed is a copy of the unsworn Affidavit of Documents of my client's. For the sake ofconvenience, I will provide you with my client's sworn Affidavit of Documents at discoveryunless you request a sworn copy in advance.



John SmithJS/gm

2.5 ASK TO BE PROVIDED WITHIN TWO WEEKS

March 8, 2010

SENT BY COURIER


Dear Mr. Michaels,


The delivery of Pleadings in this action is now complete and I would like to arrangeExamination for Discovery. Consequently, I ask that you provide me with your client's Affidavitof Documents within the next two weeks. At this time, I am preparing my client's Affidavit ofDocuments and will provide you with a copy as soon as it is complete.

I trust that I will have your cooperation.


John SmithJS/gm

2.6 THREATEN MOTION IF NOT PROVIDED

March 8, 2010

SENT BY COURIER


Dear Mr. Michaels,


I note that you are in default of service of your client's Affidavit of Documents despiteour previous requests. Unless I am in receipt of your client's Affidavit of Documents within twoweeks, I will have no option but to bring a Motion to strike out your client's Pleadings. If I amforced to bring this Motion, I will be requesting costs.

I trust that this Motion will not be necessary.


John SmithJS/gm

2.7 REQUEST DOCUMENTS LISTED IN SCHEDULE A

March 8, 2010

SENT BY COURIER


Dear Mr. Michaels,


Thank you for providing me with your client's Affidavit of Documents. Please provideme with copies of all of the documents listed in Schedule A of your client's Affidavit ofDocuments. I will reimburse you for reasonable photocopying charges upon receipt of thedocuments and your disbursement account.



John SmithJS/gm

3.1.1 CONFIRM DATE WITH REPORTER

March 8, 2010

Atchison & Denman Court Reporting ServicesLtd.155 University AvenueSuite 302Toronto ON M5H 3B7

Caroline's Reporting2200 Lakeshore BoulevardSuite 1200Kingston ON B3K 20C

Dear


I confirm that I have arranged the Cross Examination of Robert Jones for Friday, March26, 2010 from 10:00 a.m. to 12:00 p.m. at your office.



John SmithJS/gm

3.1.2 ADVISE OF EXAM DATE OF OTHER PARTY

March 8, 2010


Dear Ms. Smith,


Please be advised that I have arranged the Cross Examination of Robert Jones for Friday,March 26, 2010 from 10:00 a.m. to 12:00 p.m. at the office of Atchison & Denman CourtReporting Services Ltd., 155 University Avenue, Suite 302, Toronto, Ontario M5H 3B7. Youare not required to attend the Cross Examination. I will provide you with a report after thecompletion of the Cross Examination.




3.1.3 EXPLAIN EXAMINATIONS FOR DISCOVERY

March 8, 2010


Dear Ms. Smith,


This letter is to answer some commonly asked questions about Examination forDiscovery and to give you an overview of the Examination for Discovery process. If you readthis letter carefully, I will be able to spend more time at my next meeting concentrating on themerits of your case as opposed to explaining the basics of Examination for Discovery.

EXAMINATION FOR DISCOVERY

Examination for Discovery is an opportunity for the lawyer for the other party to ask youquestions about your case under oath in the presence of a Court Reporter. Every question you areasked and answer you provide is recorded, and a Transcript of your testimony is later prepared.The testimony you give at the Examination for Discovery is important since it may be usedagainst you at trial if the other lawyer is able to obtain admissions from you. The Examinationfor Discovery will not be held in a courtroom but in the Court Reporter's office and no Judge ispresent.

The purpose of the Examination for Discovery is to allow each side to learn whatevidence the other party may use at trial. This ensures that neither party will be surprised at trial.The Examination for Discovery also enables each party to evaluate the strengths and weaknessesof their case. Another purpose of Examination for Discovery is to obtain evidence in thepossession of the other side. When you are examined, keep in mind that the opposing lawyer willbe seeking out evidence that can be harmful to your case.

PREPARATION FOR DISCOVERY

Your best preparation for the Examination for Discovery is to be completely familiarwith your case. You can accomplish this by reviewing the documents listed in your Affidavit ofDocuments and reviewing the Pleadings in detail. You should also review your Affidavit ofDocuments once again to ensure that all relevant documents have been listed. While reviewingthe Pleadings you should ask yourself, “What evidence am I relying on in support of eachparagraph in my pleading?” This is essentially the question that the other lawyer will be trying toanswer during the Examination for Discovery.

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HELPFUL TIPS

1. Be honest with your answers. Do not try to help your case by slanting or twistingyour evidence. The worst mistake you can make is not to tell the truth.

2. Do not guess. If you are unsure about an answer, tell the examiner. It will bedifficult for you to change your evidence later, and you will have to explain why you did notgive an accurate answer. Stick to the facts.

3. Be sure that you have conveyed your point to the other lawyer fully and fairlyeven if the lawyer tries to move to a new line of questioning. On the other hand, do not volunteerinformation and give speeches.

4. Do not lose your temper. Some lawyers will try to bully you, in the hope you willlose your temper and give a hasty answer. Do not make this mistake.

5. If you do not understand a question or a term used as part of a question or if youdid not hear a question, ask the lawyer to repeat or rephrase the question. The Transcript will notdisclose pauses where you formulate an answer or take the time to review a document beforeproviding an answer.

6. If you are unable to give the answer but you have some means of acquiring theinformation, you can make an undertaking to give the answer at a future time. This is preferableto guessing.

7. Listen to the question carefully. Many people at Examination for Discovery donot listen to the question being asked.

8. If I object to a question, listen to the objection and follow my instructions given toyou.

9. Speak slowly and clearly. Please keep in mind that the Court Reporter is trying torecord what you say. The Court Reporter cannot record an expression such as a nod of the head.If you use a name or term that is difficult to spell, the Court Reporter would appreciate yougiving the correct spelling of the name or term.

10. If you realize you made an error, advise me and I can rectify the mistake. Thecorrections to the evidence can be made during the examination by putting the correction “on therecord” or after the Examination for Discovery by sending a letter to the other lawyer.

You should be aware that once the Examination for Discovery starts, you cannot ask formy assistance answering questions either during the Examination itself or during breaks. TheRules of Professional Conduct prevent me from coaching you once the Examination forDiscovery has commenced. On the other hand, there is nothing improper with me meeting withyou and reviewing the evidence and Examination for Discovery process in detail and this isprecisely what I will be doing when I meet with you before your Examination for Discovery.


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3.1.4 CONFIRM EXAM DATE OF HIS/HER CLIENT

March 8, 2010

SENT BY COURIER


Dear Mr. Michaels,


This is to confirm that I have arranged the Cross Examination of Robert Jones for Friday,March 26, 2010 from 10:00 a.m. to 12:00 p.m. at the office of Atchison & Denman CourtReporting Services Ltd., 155 University Avenue, Suite 302, Toronto, Ontario M5H 3B7.Enclosed and served upon you pursuant to the Rules of Civil Procedure is my Notice ofExamination.



John SmithJS/gm

3.2.1 LIST OF UNDERTAKINGS - SIMPLE

March 8, 2010


Dear Ms. Smith,


This is to confirm that you made the following Undertakings during the course of yourCross Examination:

1.

2.

3.

4.

5.

Please obtain the documents and information necessary to answer these Undertakings atyour earliest possible convenience. The answers to the Undertakings will form part of yourCross Examination and failure to provide the answers within a reasonable time constitutes adefault under the Rules of Civil Procedure which would allow the other counsel to bring aMotion to strike out your Pleadings.

I look forward to receiving your answers to the Undertakings within the near future.



3.2.2 LIST OF UNDERTAKINGS - EXPLAIN

March 8, 2010


Dear Ms. Smith,


This is to confirm that you made the following Undertakings during the course of yourCross Examination:

1.

2.

3.

4.

5.

Please obtain the documents and information necessary to answer these Undertakings atyour earliest possible convenience. The answers to the Undertakings will form part of yourCross Examination and failure to provide the answers within a reasonable time constitutes adefault under the Rules of Civil Procedure which would allow the other counsel to bring aMotion to strike out your Pleadings.

When answering the Undertakings, please prepare a written response in which you adoptthe same numbering scheme I have used to list the Undertakings. In each answer, please refer toany documents you are relying upon to support your answer and organize the documents youprovide to me in the same order as your answers. Please also number each document (or bundleof documents) to correspond with the appropriate answer. The following is an example of how toanswer Undertakings:

UNDERTAKING: To produce copies of tax returns for the last five (5) years.

ANSWER: Enclosed and marked as documents #1 are copies of my tax returns for thelast three (3) years, together will all supporting documents. The other tax returns are not in thepossession of my accountant and I will provide copies to you as soon as I obtain them from myaccountant.

UNDERTAKING: To produce bank statements for account #0044 at the Royal Bank ofCanada.

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ANSWER: Enclosed and marked as document #2 are copies of these bank statements.

UNDERTAKING: To make inquiries and determine the amount owing to you from yourprevious employer.

ANSWER: I spoke with John Doe, head of personnel at XYZ Corporation. He indicatedthat XYZ still owes me the sum of $3,000.00 for wages and vacation pay.

Your assistance in this manner will greatly reduce the amount of time I will need to spendto complete the answers to the Undertakings. I look forward to receiving your answers to theUndertakings within the near future.



3.2.3 REMINDER TO ANSWER UNDERTAKINGS

March 8, 2010


Dear Ms. Smith,


This is to confirm that you have not provided me with the information and documentationto answer the Undertakings you made during the course of your Cross Examination. If yourequire my assistance in answering your Undertakings, please contact me.

I look forward to receiving your answers to the Undertakings within the near future.



3.2.4 UNDERTAKINGS FROM HANDWRITTEN NOTES

March 8, 2010

SENT BY COURIER


Dear Mr. Michaels,


This is further to the Cross Examination of Robert Jones which was held on FridayMarch 26, 2010 at the office of Atchison & Denman Court Reporting Services Ltd.. During thecourse of the Examination for Discovery your client made the following Undertakings:

1.

2.

3.

4.

5.

This list of Undertakings was taken from my handwritten notes and may not beexhaustive. I reserve the right to insist upon compliance with any other Undertakings revealed bya review of the Transcript when it becomes available. I trust that you will now forward theinformation and documents necessary to answer these Undertakings.



John SmithJS/gm

3.2.5 UNDERTAKINGS FROM REVIEW OF TRANSCRIPTS

March 8, 2010

SENT BY COURIER


Dear Mr. Michaels,


This is further to the Cross Examination of Robert Jones which was held on Friday,March 26, 2010 at the office of Atchison & Denman Court Reporting Services Ltd.. I haveobtained the Transcript and my review indicates that your client gave the following Undertakingsduring the course of the Examination for Discovery:

1.

2.

3.

4.

5.

I look forward to receiving answers to these Undertakings within the near future.


John SmithJS/gm

3.2.6 ADVISE ANSWERS ARE NOTE COMPLETE

March 8, 2010

SENT BY COURIER


Dear Mr. Michaels,


I have had an opportunity to review the answers to the Undertakings given by your clientand note that following Undertakings remain outstanding:

1.

2.

3.

4.

5.

Please provide me with the information and documents necessary to answer theseUndertakings within two weeks.


John SmithJS/gm

3.2.7 REMINDER TO PROVIDE ANSWERS

March 8, 2010

SENT BY COURIER


Dear Mr. Michaels,


I confirm that I am waiting for you to provide me with answers to the Undertakings givenby your client. I trust that you are working with your client at this time and will be in a positionto provide me with the answers to Undertakings in the near future.



John SmithJS/gm

3.2.8 REQUEST ANSWERS AND THREATEN MOTION

March 8, 2010

SENT BY COURIER


Dear Mr. Michaels,


I confirm that I am waiting for you to provide me with answers to the Undertakings madeby your client. If I have not received complete answers to these Undertakings within the next twoweeks, I will bring a Motion and seek costs.

I trust that you will give this matter your immediate attention.


John SmithJS/gm

3.3.1 TRANSCRIPT OF CLIENT

March 8, 2010


Dear Ms. Smith,


I enclose the Transcript from your **Press F11 to insert (text)** for your careful review.The Transcript provides a record of the questions you were asked and the answers you gaveduring your Examination. If you discover that any of your answers are incorrect or incomplete orany of the answers are no longer correct and complete, you should let me know immediately.

The Rules of Civil Procedure place an obligation on each of the parties to advise the otherparty if any answers given during an Examination are incorrect or incomplete or no longercorrect and complete. Any new answers will be treated at a hearing as part of the originalExamination so, for this reason, any up-dated or corrected answer you provide to me should beworded with care.

If the other side is not advised of the new or corrected answers and if the information isfavourable to your case, you may not introduce the information at trial, except with leave of theJudge. Please keep your Transcript on file for the purpose of refreshing your memory if thematter ultimately proceeds to trial.




3.3.2 TRANSCRIPT OF OTHER PARTY

March 8, 2010


Dear Ms. Smith,


I enclose the Transcript of the Examination for Discovery of Robert Jones which is arecord of the questions I asked and the answers provided by Robert Jones. This will provide youwith a good understanding of the case being advanced by Robert Jones in this legal proceeding.




3.4.1 MEMORANDUM TO CORPORATE CLIENT REGARDINGDOCUMENTARY DISCOVERY

ONTARIO E-DISCOVERY IMPLEMENTATION COMMITTEE

MODEL DOCUMENT #3:

MEMORANDUM TO CORPORATE CLIENTREGARDING DOCUMENTARY DISCOVERY

Purpose of the document

It is good practice for counsel to advise their client at the outset of the litigation regarding theobligations to preserve, disclose and produce relevant documents.1 Immediate attention to thisissue ensures that the client does not lose access to important records, potentially resulting ineither strategic disadvantage or allegations of spoliation.2

This sample memorandum is intended as a practical guide to the documentary discovery processfor a corporate client.3 The purpose of such a memorandum is to describe the company’s legalobligations, outline the essential steps in implementing a litigation hold, and identify key issues tobe addressed by the company in determining how best to fulfill the obligations to preserve, discloseand produce documents in a strategic and cost effective manner. Counsel using this samplememorandum will need to satisfy themselves that any advice they give to their own client,including any of the text of this sample memorandum, is proper advice in light of the facts andcircumstances of the particular case, and the state of the law at the time and in the place theadvice is given.

Proportionality

The principle of proportionality is relevant in determining the nature and scope of a party’sobligation to preserve potentially relevant documents, and to review certain types of records(e.g., backup media, deleted electronic files, etc.) for relevance. The issue arises primarily in thecontext of electronically stored information, although it can be relevant to traditional paperdocuments in some circumstances.

The parties should ensure that all steps taken in the discovery process are proportionate, takinginto account, among other things, the importance and complexity of the case, the amounts andinterests at stake, and the costs, delay, burden and benefit associated with each step. In some

1 The word “document” is used in this Model Document in its broadest sense, as meaning “informationrecorded in any form, including electronically stored information”. The word “document” is usedinterchangeably with the word “record”.

2 Note that some of the advice, relating to the obligation to disclose all relevant documents, is mandatoryunder Rule 30.03(4) of the Ontario Rules of Civil Procedure.

3 For a sample memorandum for a client who is an individual, see Model Document #4: Memorandum to anIndividual Client Regarding Documentary Discovery.

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cases, particularly those involving a small dollar value or uncomplicated facts, it may not beappropriate to require that costly steps be taken to preserve and review all potentially relevantrecords, where the likelihood of unique or important documents being found is low or unknown.In advising a client on what steps must be taken in order to satisfy the client’s legal obligationsand to avoid allegations of spoliation, counsel must seek to strike an appropriate balance.4

With respect to preservation of relevant documents, this sample memorandum is meant toaddress the principal preservation issues that could arise in a civil litigation matter. In mostcases, certain issues addressed in this memorandum will not arise. For example, in the majorityof cases it will likely not be necessary for the client to restore backup media. The memorandumdirects the client to discuss with their counsel a number of possible preservation issues. It will beup to counsel, taking into account the circumstances of the case and the principle ofproportionality, to determine what steps are appropriate and to advise the client accordingly.

One of the most effective means of protecting both the client and counsel from allegations thatinadequate preservation efforts were made is for the parties to reach agreement on requiredpreservation steps, whether at a “meet and confer” session or through other negotiations.5

Annotations

Annotations are included at various points throughout the model document, identifying issuesthat counsel may wish to consider in advising their client. Many of the annotations refer to TheSedona Canada Principles Addressing Electronic Discovery (the “Sedona Canada Principles”).The Sedona Canada Principles are a set of national guidelines for e-discovery in Canada, whichreflect both existing legal principles and a set of identified best practices. The Sedona CanadaPrinciples are intended to be compatible with the discovery rules in all Canadian jurisdictions.Effective January 1, 2010, civil litigants in Ontario will be required, pursuant to Rule 29.1 of theRules of Civil Procedure, to consult and have regard to the Sedona Canada Principles inpreparing a discovery plan for an action. A copy of the Sedona Canada Principles may bedownloaded from www.thesedonaconference.org, where they are found under the list ofpublications for Working Group 7.

The annotations are included primarily for the benefit of counsel. Counsel may wish to deletethe annotations, or to incorporate parts of them into the text of the memorandum, prior to sendingthe memorandum to the client.

4 Principle #2 of the Sedona Canada Principles states that “In any proceeding, the parties should ensure thatsteps taken in the discovery process are proportionate, taking into account (i) the nature and scope of thelitigation, including the importance and complexity of the issues, interest and amounts at stake; (ii) therelevance of the available electronically stored information; (iii) its importance to the court’s adjudication ina given case; and (iv) the costs, burden and delay that may be imposed on the parties to deal withelectronically stored information.” Principle #2 is explicitly reflected, effective January 1, 2010, in thefollowing Rules of Civil Procedure in Ontario: rules 1.04(1.1), 20.05(2), 29.1, and 29.2.

5 Principle #4 of the Sedona Canada Principles states that “Counsel and parties should meet and confer assoon as practicable and on an ongoing basis, regarding the identification, preservation, collection, reviewand production of electronically stored information.” In this regard, see Model Document #1: DiscoveryAgreement, and Model Document #2: Preservation Agreement.

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Note: This model document has been prepared and made available to the public by the OntarioE-Discovery Implementation Committee for educational purposes, to facilitate the informed,efficient and proportionate use of e-discovery in litigation. It is not provided as legal or technicaladvice and should not be relied upon as such. This document has been re-produced by Korbitec Inc.with the express permission of the Ontario Bar Association.

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MEMORANDUM

Privileged and Confidential

TO: Suzie Smith (the “Company”) DATE: March 29, 2010

FROM: Greenberg and Griffin

SUBJECT: Suzie Smith ats Robert JonesOur File No.: 1234-001

Preservation, disclosure and production of documents

I. PURPOSE OF THIS MEMORANDUM

Litigation creates important new obligations relating to documents that must be carefully managed.The purpose of this memorandum is to:

(a) describe the Company’s obligations with respect to potential documentaryevidence in this litigation;

(b) outline the essential steps in implementing a litigation hold in order to preservepotentially relevant documents; and

(c) identify key issues in fulfilling the obligations to preserve, disclose and producedocuments in a strategic, proportionate and cost effective manner.

A guiding principle in the documentary discovery process is proportionality. The Company’sapproach to preserving, disclosing and producing documents must be proportionate, taking intoaccount, among other things, the importance and complexity of the case, the amounts andinterests at stake, and the costs, delay, burden and benefit associated with each step.

The goal of this memorandum is to help the Company in navigating through the documentarydiscovery process efficiently and without undue burden, but also effectively, in a manner that isstrategically optimal and that satisfies all of the Company’s legal obligations.

Section II of the memo provides an overview of key strategic issues.

Sections III, IV and V provide a detailed review of how the discovery process should beimplemented in order to meet the Company’s obligations in an effective and proportionate manner.Note that some of the tasks discussed in this detailed review may not be required in this litigation,

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depending upon a number of factors that we can discuss with you.6

II. OVERVIEW OF KEY ISSUES

Three obligations: The existence of litigation (or reasonably anticipated litigation) creates uniqueobligations for the Company with respect to its documents7, both paper and electronic. There arethree discrete obligations:

(d) the obligation to preserve potentially relevant documents;

(e) the obligation to disclose all relevant documents in an affidavit of documents; and

(f) the obligation to produce copies of relevant documents that are not privileged.

The duty to preserve and the risk of spoliation sanctions: The Company’s most important legalobligation with respect to documents is the obligation to preserve all documents that arepotentially relevant to the litigation. There are significant risks involved if early and effectivepreservation measures are not taken. Where potentially relevant documents are destroyed or lost,the Company may face allegations of spoliation of evidence. The consequences of spoliation can bevery serious. The court may dismiss a claim or strike a defence, it may draw an adverse inferencefrom the destruction of the documents, or it may require payment of some of the opposing parties’costs, among other things.8 It is reasonable to expect such sanctions to be applied in Ontario in anappropriate case. We can advise you regarding steps to be taken to preserve potentially relevantdocuments, as discussed below.

E-Discovery: Documentary discovery involves disclosing and producing not only paper documentsbut also electronically stored information. In today’s technological environment, the majority of acompany’s documents are now electronically stored, and thus the discovery of these records (“e-discovery”) has taken on an added importance. Although the basic rules of discovery are the samewhether a record is paper or electronic, the nature of electronic records is such that they raise anumber of unique preservation and production issues, which are addressed in this memorandum.

Benefits of early and effective discovery: It is generally more cost effective on a net basis to take athorough approach to locating and collecting relevant documents at the outset of the litigation.Usually, too, it is to the Company’s strategic advantage to locate and review all relevant documentsas soon as possible.

6 If counsel knows at the time of sending a memorandum to the client that some of the tasks identified in thememorandum need not be undertaken, the memorandum can be revised accordingly.

7 The term “document” as used in the civil litigation process is defined very broadly, as explained below inSection III.B.

8 Principle #11 of the Sedona Canada Principles states in part that “Sanctions should be considered by thecourt where a party will be materially prejudiced by another party’s failure to meet any obligation topreserve, collect, review or produce electronically stored information. The party in default may avoidsanctions if it demonstrates the failure was not intentional or reckless.” Comment 11.a states that “[t]he roleof the court is to weigh the scope and impact of non-disclosure and to impose appropriate sanctionsproportional to the culpability of the non-producing party, the prejudice to the opposing litigant and theimpact that the loss of evidence may have on the court’s ability to fairly dispose of the issues in dispute.”

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Proportionality: A key guiding principle in the documentary discovery process is proportionality,taking into account, among other things, the importance and complexity of the case, the amountsand interests at stake, and the costs, delay, burden and benefit associated with each step.

In some cases, it is not appropriate to require that costly steps be taken to preserve and review allpotentially relevant records, where the likelihood of important documents being found is low orunknown. In other cases, a more intensive documentary discovery process will be required.Judgment calls may need to be made. The documentary discovery process may require theCompany to make difficult decisions that involve weighing the costs and benefits of pursuing amore exhaustive approach to discovery.9 One purpose of this memorandum is to identify theissues that require discussion and strategic decision making.

Importance of case-specific analysis: Every litigation matter is different, and raises uniqueconsiderations. We will discuss with you the approach that is most appropriate for this case.The remainder of this memorandum provides detail on the nature of the Company’s obligationsand the logistics of the process.

III. THE OBLIGATIONS TO PRESERVE, DISCLOSE AND PRODUCE

A. What Documents Must Be Preserved: Every party to litigation must implement alitigation hold (also known as a preservation hold) promptly as soon as litigation is reasonablyanticipated, in order to preserve potentially relevant documents. This preservation obligationapplies to a broader range of documents than does the obligation to disclose and the obligation toproduce. The Company is required to preserve, in their original format, all documents that couldreasonably be expected to be potentially relevant to the litigation, until such time as their actualrelevance to the litigation can be determined.10

B. What is a “Document”?: It is important to understand the very broad scope of the term“document” as used in the Ontario Rules of Civil Procedure.11

The term “document” includes virtually any form of recorded communication, includingcorrespondence, internal memoranda, memos to file, diary entries, handwritten notes, rough notes,agreements, invoices, telegrams, bills, securities, vouchers and books of account. A “document”also includes a sound recording, videotape, film, photograph, chart, graph, map, plan, survey anddata and information in electronic form.

“Documents” include all originals, copies and drafts of the same document. Often there will bemore than one copy of a document, sometimes with minor variations or annotations, sometimes not.

9 Proportionality issues may operate differently for an individual litigation than for a corporation, and counselmay wish to modify this paragraph accordingly to suit the individual case. In many cases, the cost andburden for an individual litigant in locating, preserving and disclosing their documents will be modest,because the quantity of documents is relatively small and their location is easily identified.

10 Principle #3 of the Sedona Canada Principles provides, “As soon as litigation is reasonably anticipated,parties must consider their obligation to take reasonable and good faith steps to preserve potentially relevantelectronically stored information.”

11 This portion of the memorandum and other references to the Ontario Rules of Civil Procedure will need tobe modified in the event the litigation is in Federal Court or this document is to be used in anotherjurisdiction.

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If relevant, copies and drafts must be preserved, disclosed and produced.

Potentially relevant documents must be preserved whether they are located on company-owned,personally owned, or third-party owned devices, provided the documents are within theCompany’s possession, control or power.12

C. Electronically Stored Information: Importantly, as noted, the category of “documents”includes “data and information in electronic form”. The obligation to produce documents extendsto all electronically stored information, stored on any kind of electronic media.

The possible forms of electronically stored information include not only emails and wordprocessing documents, but also spreadsheets and other accounting data, and the contents ofdatabases and websites. In some instances, relevant electronically stored information mayinclude electronically-stored voice mail records, archived and deleted files, auto-recovery files,web-based files such as internet history logs, temporary internet files and “cookies”, andmetadata.13 We will discuss with you which forms of electronically stored information arerelevant to this case.

The media where electronically stored information may be stored include computer hard drivesand servers, backup media, USB storage devices, CDs and DVDs, laptop computers, andpersonal digital assistants (including devices like Blackberries or Palm Pilots), among others.

Electronically stored information bears important differences from paper documents, and theobligation to produce electronically stored information often will not be satisfied by producing aprintout.14 For example, some records, such as spreadsheets, may not be meaningful withoutaccess to the electronic formulae used to generate the data. Other records, such as databases,need to be accessed electronically in their original electronic form in order to view the data intheir proper context. In some cases, the metadata associated with an electronic record may berelevant, and metadata is not accessible in the printed version of an electronic record. At thepreservation stage, therefore, it is essential to ensure that potentially relevant electronic recordsare preserved intact and unmodified in their original electronic form, until counsel has had anopportunity to assess the relevance of the records and the appropriate means of production of therecords to opposing parties.

12 It may be appropriate to supplement these paragraphs in some cases, to address unique types of documentsrelevant to the particular proceeding, any agreements with opposing counsel regarding classes of documentsto be preserved or produced, or Court directions regarding the scope of the obligation to preserve or produce.

13 Metadata is information generated by a software program about a particular document or data set, whichdescribes how, when and by whom it was created, accessed and modified, and how it is formatted. Somemetadata, such as file dates and sizes, can easily be seen by users. Other metadata can be hidden orembedded and unavailable without the assistance of a person who is technically adept. Some metadata,such as the “date last accessed” or “date last modified” information, can be changed by the simple act of auser opening or accessing the electronic record. In cases where this very information is relevant to thelitigation, it is critical to take special steps to preserve this metadata. This will generally involve retainingthe services of a third party forensic consultant.

14 A helpful description of the differences between paper and electronic records is found in Section 3 of theIntroduction to the Sedona Canada Principles (“How are Electronic Documents Different from PaperDocuments?”).

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D. Required Preservation Steps: Preservation means taking reasonable steps to:

(a) ensure that potentially relevant documents (including electronically storedinformation) are not destroyed, lost or relinquished to others, either intentionally, orinadvertently such as through the implementation of an ordinary course documentretention/destruction policy;

(b) ensure that potentially relevant documents are not modified – an issue that arisesparticularly in the case of electronically stored information (which may be modifiedby the simple act of accessing the information); and

(c) ensure that potentially relevant documents remain accessible – again, an issue thatarises particularly in the case of electronically stored information, which may requireparticular forms of software or hardware to remain readable.

Note that the Company must preserve (and disclose the existence of) both privileged and non-privileged documents. However, privileged documents will not be produced to any opposing party.

Implementing a litigation hold does not entail freezing all of the Company’s records or interferingunreasonably with the operation of the Company’s business. Rather, the Company’s preservationobligation requires freezing, temporarily, only the appropriate subset of electronically storedinformation, and preserving hard copy documents, that are potentially relevant to the issues in theaction. The general obligation to preserve evidence must be balanced against the Company’s rightto continue to manage its electronic information in an economically reasonable manner. TheCompany is not required to take every conceivable step to preserve all electronically storedinformation that may be potentially relevant. Thus, to take one example, if overwritingelectronically stored information is part of the Company’s established and reasonable practice, thispractice should be permitted to continue after the commencement of litigation, providedelectronically stored information potentially relevant to the case, and not otherwise availablethrough other documents, is preserved and not overwritten.15

E. What Documents Must Be Disclosed: The Company is required to individually identify toopposing parties in the litigation all relevant documents, privileged or not. The obligation todisclose is satisfied by providing the opposing parties with a sworn affidavit of documents (that wewill prepare on the Company’s behalf) that lists all relevant documents in the Company’spossession, control or power. In the affidavit of documents, a representative of the Company mustswear that he or she has caused thorough searches to be done of the Company’s records anddocuments and made all appropriate inquiries, so as to ensure that all documents that are relevant tothe issues in the action, and that are within the Company’s possession, control or power, are listed inthe affidavit. Documents that are relevant but not privileged are listed in Schedule A to the affidavitof documents. It is these documents that will need to be produced to opposing parties. Privilegeddocuments are listed in Schedule B to the affidavit of documents. These documents will not need tobe produced as long as the assertion of privilege is valid and privilege is not waived. Finally,relevant documents that are no longer in the Company’s possession, control or power are to be listedin Schedule C to the affidavit of documents.

15 See the Sedona Canada Principles, Principle #3 and Comments 3.a and 3.h.

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F. What Documents Must Be Produced: The obligation to produce documents to opposingparties applies only to relevant, non-privileged documents listed in Schedule A to the affidavit ofdocuments. Privileged documents are not produced unless privilege is waived. Irrelevantdocuments do not need to be produced. As noted, therefore, the documents that are produced to theopposing parties will be only a subset of the broader category of potentially relevant documentsinitially subject to the obligation to preserve. Opposing parties are required to pay the cost ofmaking a copy of the productions, although generally not the cost of preserving them andidentifying them as relevant.

G. What Makes a Document “Relevant”: The courts have taken a broad approach todetermining the relevance of documents. Any document that may have a bearing on any of theissues in the lawsuit is generally considered to be relevant and therefore to be subject to theobligations to preserve, disclose and produce.

Documents must be disclosed even though they may assist adverse parties and may be harmful tothe disclosing party’s case. The documentary disclosure process is designed to ensure that the Courtand all parties to the litigation are made aware of all relevant documents pertaining to the issues inthe case.

In identifying the documents that the Company is obliged to preserve, disclose or produce, ifthere is any doubt as to the possible relevance of a particular document or class of document,please contact us so that we can consider it. It is critical that in the first instance all documentsthat could in any way be relevant are brought to our attention.

H. What Documents are Within the Company’s “Control or Power”: The Company isrequired to disclose and produce not only documents that it possesses, but also those within its“control or power”. The affected documents include any documents that the Company has thepower to possess or to obtain from others, such as from employees, banks, professionals (such asaccountants or lawyers), the government, insurers, third party service providers and, in somecircumstances, affiliated companies.

IV. PRESERVATION – IMPLEMENTING A LITIGATION HOLD

The obligation to preserve all potentially relevant documents requires the implementation of alitigation hold as soon as the Company reasonably anticipates that litigation will occur.

A. Review of Existing Litigation Hold Policy: The Company may already have a litigationhold policy as part of its document retention policy. This is the recommended practice. If that isthe case, the policy should be implemented immediately. At the same time, please provide uswith a copy of the policy promptly so that we may ensure that it addresses all documentpreservation requirements applicable to this case.

B. Steps in a Litigation Hold: The Company should ensure, at a minimum, that it takes thefollowing steps to preserve documents potentially relevant to the litigation.

1. Immediately consider whether to stop ordinary course document destruction: The firststep is to determine whether there are potentially relevant documents that will be

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destroyed through the operation of the Company’s ordinary course document destructionor recycling policies. If so, the Company must determine promptly what steps should betaken to preserve copies of the documents. It will ordinarily be necessary to ensure that:

(i) potentially relevant hard copy documents in storage that are scheduled tobe destroyed based on the expiry of a retention period in a retentionschedule are isolated and not destroyed;

(ii) consideration is given to whether any backup media contain potentiallyrelevant documents that are not located elsewhere (such that the backupmedia likely contain the Company’s only existing copy of the documents);if so, these backup media must be isolated and not recycled; and

(iii) if the Company has an automatic email deletion program (e.g., the contents ofemail inboxes are deleted after a specified number of days) that will causethe deletion of potentially relevant emails, the affected emails are copiedor segregated before deletion.

2. Address any other urgent issues that require immediate attention: For example, if thereare departing employees or other circumstances that could give rise to the loss ofpotentially relevant documents or information in the short term, immediate preservationsteps should be taken. Advice from legal counsel should be sought on these issues.

3. Appoint one individual to implement the litigation hold: The Company should, as soon aspossible, appoint one reliable senior employee to assume overall responsibility, inconsultation with the legal department (if the employee is not a member of the legaldepartment) and external legal counsel, for the implementation of the litigation hold.

4. Meet to identify preservation issues: The employee responsible for implementing thelitigation hold should meet promptly with legal counsel, employees with knowledge ofthe facts in the litigation, records management personnel and senior IT personnel todetermine what specific steps need to be taken to preserve potentially relevantdocuments.

5. Identify preservation issues: Steps required to determine appropriate preservationmeasures should be taken quickly, to avoid the inadvertent loss of potentially relevantdocuments. These steps will generally involve:

(a) identifying the individuals likely to have generated or stored relevant documents,including assistants, archivists, and third parties;

(b) identifying the timeframe within which the events at issue in the litigationoccurred, so as to narrow the search for potentially relevant documents;

(c) identifying the software likely to have been used to generate relevantelectronically stored information;

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(d) identifying the likely locations of relevant documents, taking into considerationgeography, operations, workflow and technology in use;

(e) identifying the personnel within the Company whose assistance is required tomeet discovery obligations;

(f) determining whether it will be necessary or useful to use electronic search tools ormethodologies (e.g., key word searches) in order to locate potentially relevantdocuments;16

(g) determining whether it is necessary or appropriate in the context of the litigationto take steps to preserve or restore backup media,17 deleted electronic data,18 ormetadata (relevant factors here include the likelihood that these records wouldinclude potentially relevant documents, as well as proportionality concerns –weighing the cost and other burdens of preservation against the likelihood oflocating relevant documents, the importance of the documents, the value andcomplexity of the case, and other factors);

(h) determining the appropriateness of taking forensic copies of the Company’spotentially relevant electronic data to avoid the possibility of the data beingmodified or overwritten;19

16 Principle #7 of the Sedona Canada Principles states that “A party may satisfy its obligation to preserve,collect, review and produce electronically stored information in good faith by using electronic tools andprocesses such as data sampling, searching and/or the use of selection criteria to collect potentially relevantelectronically stored information.” Comment 7.a indicates that as it may be impractical or prohibitivelyexpensive to review all information manually, parties and counsel should where possible agree in advanceon targeted selection criteria. Comment 7.b suggests various processing techniques to use in searchesincluding filtering, de-duplication, sampling and validation.

17 Comment 3.i of the Sedona Canada Principles states that, “[g]enerally, parties should not be required topreserve short-term disaster recovery backup media created in the ordinary course of business. Whenbackup media exist to restore electronic files that are lost due to system failures or through disasters such asfires, their contents are, by definition, duplicative of the contents of active computer systems at a specificpoint in time. Provided that the appropriate contents of the active system are preserved, preserving backupmedia on a going-forward basis will be redundant.” However, where a party retains its backup media for aconsiderable period of time, or uses them for archival purposes, this may result in relevant documents thatare not in the active system being available only in the backup media. In that case, “steps should promptlybe taken to preserve those archival media that are reasonably likely to contain relevant information notpresent as active data on the party’s system.”

18 Principle #6 of the Sedona Canada Principles states that “A party should not be required, absent agreementor a court order based on demonstrated need and relevance, to search for or collect deleted or residualelectronically stored information.” Comment 6.a suggests that deleted or residual data that can only beaccessed through forensic means should not be presumed to be discoverable and ordinarily, searches forelectronically sorted information” will be restricted to a search of active data and reasonably accessibleonline sources. The “evaluation of the need for and relevance of such discovery should be analyzed on acase by case basis” as “only exceptional cases will turn on “deleted” or “discarded” information”.

19 Comment 4.c of the Sedona Canada Principles suggests that “[w]hile the making of bit-level images of harddrives is useful in selective cases for the preservation phase, the further processing of the total contents ofthe drive should not be required unless the nature of the matter warrants the cost and burden. Makingforensic image backups of computers is only the first step in a potentially expensive, complex, and difficultprocess of data analysis. It can divert litigation into side issues involving the interpretation of ambiguous

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(i) determining whether there is electronically stored information that is relevant tothe litigation but that continues to be actively used in the course of the Company’sbusiness and, if so, determining what steps should be taken to preserve one ormore forensic or non-forensic copies of the electronically stored information atparticular points in time;

(j) determining whether there are potentially relevant documents created using olderforms of software or stored in older media that are no longer accessible using theCompany’s current IT system and, if so, determining appropriate means ofaccessing these documents; and

(k) determining whether it is necessary or appropriate to retain a third party consultant toassist in identifying and preserving relevant electronically stored information and, if so,identifying the required areas of expertise.20

Most of these issues should be discussed with external legal counsel. In many cases, itwill not be necessary to take some of these steps.

6. Issue litigation hold notices: The Company should promptly inform all involvedemployees, contract workers and third parties who may be custodians of potentiallyrelevant documents of the need to preserve these documents in their original formatwithout modification.21 The list of custodians may include IT personnel and others whomay have control over documents they did not themselves create. The custodians shouldbe instructed not to destroy, delete or modify electronically stored information in anyway, including by accessing files that are otherwise inactive (which may alter themetadata) or by packing, compressing, purging, disposing of files or parts of files, orautomatic overwriting. Each individual should be asked to specifically identify the placesin which potentially relevant documents may be located (including filing cabinets,portable computers, PDAs, and home offices), and to outline their personal documenthandling practices (such as whether they generally delete emails upon receipt, store themin subject-matter folders etc.). Attached as Appendix “A” is a sample litigation holdnotice, which may be modified as appropriate. This notice should be sent by a seniorofficer of the Company, and should make clear to the custodians that their failure topreserve and produce all relevant documents could have serious consequences.22

forensic evidence.” Note that it is difficult in practice to make a forensic copy of a server, as servers aretypically not able to be brought out of service for copying.

20 Counsel may wish to identify appropriate third party consultants to assist the client in ensuring that allavailable sources of potentially relevant documents have been canvassed, if the client does not have thenecessary resources in-house.

21 It may be helpful for counsel to provide to the client a list of known custodians who should receive thelitigation hold notice.

22 See Comment 3.d of the Sedona Canada Principles and the discussion of the need to communicatepreservation notices not only to employees of the parties, but also to non-party custodians. As regardsemployees, the notice need reach only those reasonably likely to maintain documents potentially relevant tothe litigation or investigation. Comment 3.j notes the possibility, though, that there may be shared areas in acompany’s IT system that are not regarded as belonging to any specific employee. Such areas should beidentified and appropriate steps taken to preserve any relevant documents.

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7. Maintain an audit trail: It is important to keep detailed records of all preservation steps,including decisions made, search parameters used, locations searched, and custodianscontacted. The Company should also consider the need to keep chain of custody logs forelectronically stored information that is preserved and transmitted to third partyconsultants or legal counsel. It may become necessary later in the litigation process toestablish the chain of custody of certain electronic records, in order to demonstrate theirauthenticity and reliability.

8. Meet and confer with opposing parties: Counsel (possibly with a representative of theCompany) should confer with opposing counsel early in the litigation to discusspreservation issues and an agreed discovery plan.23 The implementation of an agreedplan may help to guide the Company in conducting its preservation steps, and to protectthe Company against allegations of spoliation.24 One additional purpose of the discoveryplanning (or “meet and confer”) session may be to negotiate the allocation of costsassociated with preserving and reviewing certain classes of potentially relevantdocuments. Discovery planning sessions will be mandatory in Ontario effective January1, 2010.25 We should discuss the Company’s approach to a possible discovery planningsession in this case.

9. Collect the documents: Based on the various determinations made about what documentsshould be preserved, and about the proper method of preservation, the Company shouldproceed to collect the potentially relevant documents, or to have them collected by a thirdparty, as appropriate. We will discuss with you the appropriate process for this collectionstage.

10. Send further litigation hold notices: In appropriate cases, the Company should issuefurther litigation hold notices to document custodians throughout the course of thelitigation. Sending additional notices is particularly important where the Company’scurrent, active documents are relevant to the litigation, in which case the need foremployees to be reminded of their preservation obligation may be greater. Litigation

23 As noted, Principle #4 of the Sedona Canada Principles states that “Counsel and parties should meet andconfer as soon as practicable and on an ongoing basis, regarding the identification, preservation, collection,review and production of electronically stored information.” Principle #8 states that “Parties should agree asearly as possible in the litigation process on the format in which electronically stored information will beproduced. Parties should also agree on the format, content and organization of information to be exchangedin any required list of documents as part of the discovery process.”

24 In this regard, see Model Document #1: Discovery Agreement, and Model Document #2: PreservationAgreement.

25 Rule 29.1 of the Ontario Rules of Civil Procedure comes into force on January 1, 2010 and requires partiesseeking discovery to agree upon a written discovery plan for the action that addresses the intended scope ofdocumentary discovery taking into account proportionality issues, dates for service of affidavits ofdocuments, information regarding the timing, costs and manner of production of documents, the names ofdiscovery witnesses, information regarding the timing and length of examinations for discovery, and anyother information intended to result in the expeditious and cost-effective completion of the discoveryprocess in a manner that is proportionate to the importance and complexity of the action. The rule requiresparties to consult and have regard to the Sedona Canada Principles in preparing the discovery plan.

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hold notices should also be issued to any new employees who have access to relevantdocuments.26

C. Proportionality in the Litigation Hold: Many preservation steps involved inimplementing a litigation hold could be relatively costly, or otherwise burdensome for theCompany. In complex cases involving significant dollar values, these costs and other burdensmay be relatively minor when compared to the importance of preserving and collecting allpotentially relevant documents. In many cases, though, a balancing must take place betweentaking reasonable preservation steps and keeping the costs of preservation within a reasonablerange, in light of the nature and dollar value of the case, uncertainty regarding the scope of thefactual and legal issues in the case, and other factors.27

As noted above, it is appropriate for legal counsel to be involved in the initial discussionsbetween the employee implementing the litigation hold, relevant employees and the Company’sIT personnel at which the required preservation steps are identified. We will be able to adviseyou on preservation steps you should consider in the circumstances of this case, and on theassociated risks if these steps are not taken.28

Depending on the outcome of those discussions, we may be able to recommend certainmodifications to the broad preservation and production obligations set forth in thismemorandum.29

V. DISCLOSURE AND PRODUCTION

A. Arrangements for Processing Documents: We will discuss with you the appropriatearrangements for processing the Company’s documents for the purposes of review by counsel anddisclosure and production to the opposing parties. Generally speaking, in cases involving a large

26 Counsel may wish to advise the client on a recommended time period for reminder notices.27 As noted above, Principle #2 of the Sedona Canada Principles states that “In any proceeding, the parties

should ensure that steps taken in the discovery process are proportionate, taking into account (i) the natureand scope of the litigation, including the importance and complexity of the issues, interest and amounts atstake; (ii) the relevance of the available electronically stored information; (iii) its importance to the court’sadjudication in a given case; and (iv) the costs, burden and delay that may be imposed on the parties to dealwith electronically stored information.”

28 Principle #5 of the Sedona Canada Principles states that “The parties should be prepared to produce relevantelectronically stored information that is reasonably accessible in terms of cost and burden.” Comment 5.asuggests that given the volume and technical challenges associated with the discovery of electronicallystored information, the parties engage in a cost benefit analysis, weighing the “cost of identifying andretrieving the information from each potential source against the likelihood that the source will yield unique,necessary and relevant information”. Counsel are encouraged to exercise judgment based on a reasonablegood faith inquiry having regard to the location and cost of recovery or preservation. The more costly andburdensome the effort that will be required to access a particular source “the more certain the parties need tobe that the source will yield responsive information”. Comment 5.a suggests that, if potentially relevantdocuments exist in a format that is not “readily usable”, cost-shifting may be appropriate.

29 See Comment 3.a of the Sedona Canada Principles: “The general obligation to preserve evidence extends toelectronically stored information but must be balanced against the party’s right to continue to manage itselectronic information in an economically reasonable manner, including routinely overwriting electronicinformation in appropriate cases.” See also Comment 3.c, and the discussion of the need for parties to takereasonable and good faith steps to preserve information relevant to issues in an action.

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volume of documents, particularly electronic documents, we recommend retaining a third partylitigation support vendor to scan or input the documents into a litigation support software program,and to “code” the documents, which involves inputting identifying information about the documents(author, recipient, date, document source, etc.) into the same program. In cases involving smallervolumes of documents, we may recommend performing the document processing tasks internally.

B. Document Review: Once the documents are collected and have been inputted into thelitigation support software program, they will need to be reviewed for relevance, privilege and, insome cases, confidentiality or privacy. It is our role as legal counsel, in coordination with you, tomake these determinations of relevance and privilege, in order to identify which documents must bedisclosed and produced. We will discuss with you the arrangements we propose to make forreviewing the documents.

C. Privilege: As noted above, the existence of documents that are subject to a claim ofprivilege must be disclosed in the affidavit of documents, but copies of the documents need not beproduced. The most common types of privilege are solicitor-client privilege, litigation privilege,settlement privilege and common interest privilege. Solicitor-client privilege generally protects allcommunications between a party and its legal counsel with respect to the giving and receiving oflegal advice. Litigation privilege generally protects documents which are produced or brought intoexistence for the dominant purpose of aiding in the conduct of litigation. Settlement privilegeprotects communications made on a without prejudice basis with a view to resolving the disputegiving rise to the litigation. Common interest privilege protects communications made in somecircumstances where two parties share a common goal in opposition to other parties, such as wheretwo defendants communicate in furtherance of making a common defence to the plaintiff’s case.

We will review all potentially relevant documents to determine whether a claim of privilege shouldproperly be asserted. In some cases, it may be necessary to produce a document that containsrelevant, non-privileged information, but to redact (i.e., blacken out) certain privileged text in thedocument.

D. Ongoing Obligations: The obligation to preserve, disclose and produce relevantdocuments is ongoing during the litigation. Steps should be taken to ensure that any policyregarding destruction of documents on a routine basis does not result in the loss of relevantdocuments over time. All relevant documents created or obtained in the future need to be providedto us on an on-going basis so that they can be disclosed and produced as appropriate.

E. Restrictions on Adverse Party’s Use of Documents: With certain limited exceptions,documents and information produced by a party in a lawsuit may be used only for purposes of thelawsuit, and may not be used for any other purpose, including in any other lawsuit. This restrictionapplies to information disclosed by the Company and by opposing parties during oral discovery(and to the transcripts of oral discovery) as well as to documents produced. Accordingly, the partiesmust take steps to ensure that documents and information obtained from other parties in the courseof the lawsuit are not disclosed to other persons or used for other purposes. A court can relieve aparty from the burden of the confidentiality obligation. Further, notwithstanding the confidentialityobligation, there is a risk of public disclosure of otherwise private information. Accordingly, if youhave any concerns regarding the possible disclosure of your confidential documents or information,please discuss those concerns with us.

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VI. CONCLUSION

We should discuss as soon as possible the preservation steps that the Company proposes to take inimplementing its litigation hold, as well as the appropriate process for collecting and processing thedocuments. We should also discuss the overall timing of the steps in the documentary discoveryprocess and of the Company’s production of its relevant documents.

If you have any questions or concerns regarding the documentary discovery process, please let usknow.

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SAMPLE LITIGATION HOLD NOTICE(NON-IT STAFF)


March 29, 2010

SUZIE SMITHDocument Preservation Notice

As you may know, Suzie Smith is involved in a dispute with **Press F11 and insert (adverseparty)**. You have received this notice because it is believed you may possess or controldocuments (including electronically stored information), which may be relevant to this dispute.

1. Consequences of Failing to Preserve and Produce Documents

Failing to preserve and produce potentially relevant documents could have serious consequencesfor Suzie Smith, including the failure of the Defendant’s case in the lawsuit. The court couldalso assume that the documents that were not preserved would have been harmful to Defendant’scase and draw inferences favourable to **Press F11 and insert (adverse party)**. Suzie Smithcould be required to pay costs, damages or other sanctions.

Given the gravity of these potential consequences, it is essential that you give immediateattention to this Notice and comply with the directions contained within it.

2. Your Obligation to Preserve and Produce Documents

The issues in this litigation arise from **Press F11 and insert (describe litigation)**[describelitigation]. Documents relevant to the dispute are likely to include **Press F11 and insert(describe broad classes of relevant documents)**[describe broad classes of relevant documents].

As a custodian of potentially relevant documents, you are legally required to take reasonable andgood faith steps to protect such documents from destruction, to preserve them in their originalformat, and to cooperate with Suzie Smith and its counsel in obtaining access to them. Inparticular, you must: **Press F11 and insert (list relevant document preservation protocols, withreference to document retention policies if applicable)**[list relevant document preservationprotocols, with reference to document retention policies if applicable].

Your obligation to preserve documents does not end today. You must also preserve relevantdocuments created or received in the future.

3. Broad Meaning of “Document”

“Document” has a very broad meaning.

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The obligation to preserve documents extends not only to paper documents but also to computerfiles, sound recordings, video recordings, film, photographs, charts, maps, plans, books, surveys,etc.

These documents may be stored in a tangible form or may be electronic, such as is the case withcomputer files. For example, email messages, spreadsheets, electronic calendars, wordprocessing files, computer databases, and the contents of Blackberrys and other PDAs are allexamples of documents to be preserved.

These documents must be preserved even if they exist on your home computer, your mobilephone or PDA, or on a mobile drive.

Relevant documents may be discoverable whether they are located in devices owned by SuzieSmith or by you personally. In discharging your obligations pursuant to this Notice, it isessential that you consider where you may have stored potentially relevant documents, such asfiling cabinets, portable computers, PDAs, or your home office.

4. Next Steps

You will shortly be contacted by **Press F11 and insert (identify the internal or external counsel,or service-provider)**[identify the internal or external counsel, or service-provider] to arrangefor the production of your documents.

Counsel will review the documents to determine whether they are relevant, and will take steps toprotect documents which are subject to privilege. Please do not attempt to make suchdeterminations yourself.

5. Further Information

If you have any questions arising from this Notice, please contact me directly using the followingcontact information:

Name:Title:Phone:Fax:Email:Address:

If you cannot reach me directly and the matter is urgent, please contact:

Name:Title:Phone:Fax:Email:Address:

[Signed by Senior Officer/General Counsel]

3.4.2 MEMORANDUM TO INDIVIDUAL CLIENT REGARDINGDOCUMENTARY DISCOVERY


MODEL DOCUMENT #4:

MEMORANDUM TO AN INDIVIDUAL CLIENTREGARDING DOCUMENTARY DISCOVERY


It is good practice for counsel to advise their client at the outset of the litigation regarding theobligations to preserve, disclose and produce relevant documents.1 Immediate attention to thisissue ensures that the client does not lose access to important records, potentially resulting ineither strategic disadvantage or allegations of spoliation.2

This sample memorandum is intended as a practical guide to the documentary discovery processfor a client who is an individual.3 The purpose of such a memorandum is to describe theindividual’s legal obligations, outline the essential steps in implementing a litigation hold, andidentify key issues to be addressed by the client in determining how best to fulfill the obligations topreserve, disclose and produce documents in a strategic and cost effective manner. Counsel usingthis sample memorandum will need to satisfy themselves that any advice they give to their ownclient, including any of the text of this sample memorandum, is proper advice in light of the factsand circumstances of the particular case, and the state of the law at the time and in the place theadvice is given.

This memo is fairly detailed, and contemplates a client with significant quantities of electronicrecords, either in the client’s personal possession or in the possession of employers, professionalsor other third parties. It will be appropriate to simplify this memo when dealing with individualswith limited quantities of electronic records, or whose records are stored in a limited number ofplaces, such as a home computer.

Proportionality

The principle of proportionality is relevant in determining the nature and scope of a party’sobligation to preserve potentially relevant documents, and to review certain types of records

1 The word “document” is used in this Model Document in its broadest sense, as meaning “informationrecorded in any form, including electronically stored information”. The word “document” is usedinterchangeably with the word “record”.

2 Note that some of the advice, relating to the obligation to disclose all relevant documents, is mandatoryunder Rule 30.03(4) of the Ontario Rules of Civil Procedure.

3 For sample memorandum for a corporate client, see Model Document #3: Memorandum to Corporate ClientRegarding Documentary Discovery.

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(e.g., backup media, deleted electronic files, etc.) for relevance. The issue arises primarily in thecontext of electronically stored information, although it can be relevant to traditional paperdocuments in some circumstances.

The parties should ensure that all steps taken in the discovery process are proportionate, takinginto account, among other things, the importance and complexity of the case, the amounts andinterests at stake, and the costs, delay, burden and benefit associated with each step. In somecases, particularly those involving a small dollar value or uncomplicated facts, it may not beappropriate to require that costly steps be taken to preserve and review all potentially relevantrecords, where the likelihood of unique or important documents being found is low or unknown.In advising a client on what steps must be taken in order to satisfy the client’s legal obligationsand to avoid allegations of spoliation, counsel must seek to strike an appropriate balance.4

With respect to preservation of relevant documents, this sample memorandum is meant toaddress the principal preservation issues that could arise in a civil litigation matter. In mostcases, certain issues addressed in this memorandum will not arise. For example, in the majorityof cases it will likely not be necessary for the client to restore backup media (if the clientmaintains backup media). The memorandum directs the client to discuss with their counsel anumber of possible preservation issues. It will be up to counsel, taking into account thecircumstances of the case and the principle of proportionality, to determine what steps areappropriate and to advise the client accordingly.

One of the most effective means of protecting both the client and counsel from allegations thatinadequate preservation efforts were made is for the parties to reach agreement on requiredpreservation steps, whether at a “meet and confer” session or otherwise.5

Annotations

Annotations are included at various points throughout the model document, identifying issuesthat counsel may wish to consider in advising their client. Many of the annotations refer to TheSedona Canada Principles Addressing Electronic Discovery (the “Sedona Canada Principles”).The Sedona Canada Principles are a set of national guidelines for e-discovery in Canada, whichreflect both existing legal principles and a set of identified best practices. The Sedona CanadaPrinciples are intended to be compatible with the discovery rules in all Canadian jurisdictions.Effective January 1, 2010, civil litigants in Ontario will be required, pursuant to Rule 29.1 of theRules of Civil Procedure, to consult and have regard to the Sedona Canada Principles inpreparing a discovery plan for an action. A copy of the Sedona Canada Principles may be

4 Principle #2 of the Sedona Canada Principles states that “In any proceeding, the parties should ensure thatsteps taken in the discovery process are proportionate, taking into account (i) the nature and scope of thelitigation, including the importance and complexity of the issues, interest and amounts at stake; (ii) therelevance of the available electronically stored information; (iii) its importance to the court’s adjudication ina given case; and (iv) the costs, burden and delay that may be imposed on the parties to deal withelectronically stored information.” Principle #2 is explicitly reflected, effective January 1, 2010, in thefollowing Rules of Civil Procedure in Ontario: rules 1.04(1.1), 20.05(2), 29.1, and 29.2.

5 Principle #4 of the Sedona Canada Principles states that “Counsel and parties should meet and confer assoon as practicable and on an ongoing basis, regarding the identification, preservation, collection, reviewand production of electronically stored information.” In this regard, see Model Document #1: DiscoveryAgreement, and Model Document #2: Preservation Agreement.

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downloaded from www.thesedonaconference.org, where they are found under the list ofpublications for Working Group 7.

The annotations are included for the benefit of counsel, who will presumably wish to delete theannotations, or to incorporate parts of them into the text of the letter, prior to sending thememorandum to the client.

Note: This model document has been prepared and made available to the public by the OntarioE-Discovery Implementation Committee for educational purposes, to facilitate the informed,efficient and proportionate use of e-discovery in litigation. It is not provided as legal or technicaladvice and should not be relied upon as such. This document has been re-produced by Korbitec Inc.with the express permission of the Ontario Bar Association.

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MEMORANDUM


TO: Suzie Smith DATE: March 29, 2010

FROM: Greenberg and Griffin

SUBJECT: Suzie Smith ats Robert JonesOur File No.: 1234-001

Preservation, disclosure and production of documents

I. PURPOSE OF THIS MEMORANDUM

Litigation creates important new obligations relating to documents that must be carefully managed.The purpose of this memorandum is to:

(a) describe your legal obligations with respect to potential documentary evidence inthis litigation;

(b) outline the essential steps in implementing a litigation hold in order to preservepotentially relevant documents; and

(c) identify key issues in fulfilling the obligations to preserve, disclose and producedocuments in a strategic, proportionate and cost effective manner.

A guiding principle in the documentary discovery process is proportionality. The approach topreserving, disclosing and producing documents must be proportionate, taking into account, amongother things, the importance and complexity of the case, the amounts and interests at stake, andthe costs, delay, burden and benefit associated with each step.

The goal of this memorandum is to help you to navigate through the documentary discovery processefficiently and without undue burden, but also effectively, in a manner that is strategically optimaland that satisfies all of your legal obligations.

Section II of the memo provides an overview of key strategic issues.

Sections III, IV and V provide a detailed review of how the discovery process should beimplemented in order to meet your obligations in an effective and proportionate manner. Note thatsome of the tasks discussed in this detailed review may not be required in this litigation, depending

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upon a number of factors that we can discuss with you.6

II. OVERVIEW OF KEY ISSUES

Three obligations: The existence of litigation (or reasonably anticipated litigation) creates uniqueobligations for you with respect to your documents7, both paper and electronic. There are threediscrete obligations:

(d) the obligation to preserve potentially relevant documents;

(e) the obligation to disclose all relevant documents in an affidavit of documents; and

(f) the obligation to produce copies of relevant documents that are not privileged.

E-Discovery: Documentary discovery involves disclosing and producing not only paper documentsbut also electronically stored information. In today’s technological environment, most documentsare electronically stored, and thus the discovery of these records (known as “e-discovery”) has takenon an added importance. Although the basic rules of discovery are the same whether a record ispaper or electronic, the nature of electronic records is such that they raise a number of uniquepreservation and production issues, which are addressed in this memorandum.

Risk of spoliation sanctions: In making decisions on documentary discovery issues, it isimportant to consider the risks involved in not taking early and effective action. Where potentiallyrelevant documents are destroyed or lost rather than being preserved, you may face allegations ofspoliation of evidence. The consequences of spoliation can be very serious. The court may dismissa claim or strike a defence, it may draw an adverse inference from the destruction of the documents,or it may require payment of some of the opposing parties’ costs, among other things.8 It isreasonable to expect such sanctions to be applied in Ontario in an appropriate case.

Benefits of early and effective discovery: It is generally more cost effective on a net basis to take athorough approach to locating and collecting relevant documents at the outset of the litigation.Usually, too, it is to your strategic advantage to locate and review all relevant documents as soon aspossible.

Proportionality: A guiding principle in the documentary discovery process is proportionality, takinginto account, among other things, the importance and complexity of the case, the amounts andinterests at stake, and the costs, delay, burden and benefit associated with each step.

6 If counsel knows at the time of sending a memorandum to the client that some of the tasks identified in thememorandum need not be undertaken, the memorandum can be revised accordingly.

7 The term “document” as used in the civil litigation process is defined very broadly, as explained below inSection III.B.

8 Principle #11 of the Sedona Canada Principles states in part that “Sanctions should be considered by thecourt where a party will be materially prejudiced by another party’s failure to meet any obligation topreserve, collect, review or produce electronically stored information. The party in default may avoidsanctions if it demonstrates the failure was not intentional or reckless.” Comment 11.a states that “[t]he roleof the court is to weigh the scope and impact of non-disclosure and to impose appropriate sanctionsproportional to the culpability of the non-producing party, the prejudice to the opposing litigant and theimpact that the loss of evidence may have on the court’s ability to fairly dispose of the issues in dispute.”

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In some cases, it is not appropriate to require that costly steps be taken to preserve and review allpotentially relevant records, where the likelihood of important documents being found is low orunknown. In other cases, a more intensive documentary discovery process will be required.Judgment calls may need to be made. The documentary discovery process may require you to makedifficult decisions that involve weighing the costs and benefits of pursuing a more exhaustiveapproach to discovery.9 One purpose of this memorandum is to identify the issues that requirediscussion and strategic decision making.

Importance of case-specific analysis: Every litigation matter is different, and raises uniqueconsiderations. We will discuss with you the approach that is most appropriate for this case.The remainder of this memorandum provides detail on the nature of your obligations and thelogistics of the process.

III. THE OBLIGATIONS TO PRESERVE, DISCLOSE AND PRODUCE

A. What Documents Must Be Preserved: Every party to litigation must implement alitigation hold (also known as a preservation hold) promptly as soon as litigation is reasonablyanticipated, in order to preserve potentially relevant documents. This preservation obligationapplies to a broader range of documents than does the obligation to disclose and the obligation toproduce. You are required to preserve, in their original format, all documents that could reasonablybe expected to be potentially relevant to the litigation, until such time as their actual relevance to thelitigation can be determined.10

B. What is a “Document”?: It is important that you understand the very broad scope of theterm “document” as used in the Ontario Rules of Civil Procedure.11

The term “document” includes virtually any form of recorded communication, includingcorrespondence, internal memoranda, memos to file, diary entries, handwritten notes, rough notes,agreements, invoices, telegrams, bills, securities, vouchers and books of account. A “document”also includes a sound recording, videotape, film, photograph, chart, graph, map, plan, survey anddata and information in electronic form.

“Documents” include all originals, copies and drafts of the same document. Often there will bemore than one copy of a document, sometimes with minor variations or annotations, sometimes not.If relevant, copies and drafts must be preserved, disclosed and produced.

Potentially relevant documents must be preserved whether they are located on company-owned,personally owned, or third-party owned devices, provided the documents are within your

9 Proportionality issues may operate differently for an individual litigant than for a corporation, and counselmay wish to modify this paragraph accordingly to suit the individual case. In many cases, the cost andburden for an individual litigant in locating, preserving and disclosing their documents will be modest,because the quantity of documents is relatively small and their location is easily identified.

10 Principle #3 of the Sedona Canada Principles provides, “As soon as litigation is reasonably anticipated,parties must consider their obligation to take reasonable and good faith steps to preserve potentially relevantelectronically stored information.”

11 This portion of the memorandum and other references to the Ontario Rules of Civil Procedure will need tobe modified in the event the litigation is in Federal Court or this document is to be used in anotherjurisdiction.

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possession, control or power.12

C. Electronically Stored Information: Importantly, as noted, the category of “documents”includes “data and information in electronic form”. The obligation to produce documents extendsto all electronically stored information, stored on any kind of electronic media.

The possible forms of electronically stored information include not only emails and wordprocessing documents, but also spreadsheets and other accounting data, and the contents ofdatabases and websites. In some instances, relevant electronically stored information mayinclude electronically-stored voice mail records, archived and deleted files, auto-recovery files,web-based files such as internet history logs, temporary internet files and “cookies”, andmetadata.13 We will discuss with you which forms of electronically stored information arerelevant to this case.

The media where electronically stored information may be stored include computer hard drivesand servers, backup media, USB storage devices, CDs and DVDs, laptop computers, andpersonal digital assistants (including devices like Blackberries or Palm Pilots), among others.

Electronically stored information bears important differences from paper documents, and theobligation to produce electronically stored information often will not be satisfied by producing aprintout.14 For example, some records, such as spreadsheets, may not be meaningful withoutaccess to the electronic formulae used to generate the data. Other records, such as databases,need to be accessed electronically in their original electronic form in order to view the data intheir proper context. In some cases, the metadata associated with an electronic record may berelevant, and metadata is not accessible in the printed version of an electronic record. At thepreservation stage, therefore, it is essential to ensure that potentially relevant electronic recordsare preserved intact and unmodified in their original electronic form, until we have had anopportunity to assess the relevance of the records and the appropriate means of production of therecords to opposing parties.

D. Required Preservation Steps: Preservation means taking reasonable steps to:

(a) ensure that potentially relevant documents (including electronically storedinformation) are not destroyed, lost or relinquished to others, either intentionally, orinadvertently such as through the application of a company’s ordinary course

12 It may be appropriate to supplement these paragraphs in some cases, to address unique types of documentsrelevant to the particular proceeding, any agreements with opposing counsel regarding classes of documentsto be preserved or produced, or Court directions regarding the scope of the obligation to preserve or produce.

13 Metadata is information generated by a software program about a particular document or data set, whichdescribes how, when and by whom it was created, accessed and modified, and how it is formatted. Somemetadata, such as file dates and sizes, can easily be seen by users. Other metadata can be hidden orembedded and unavailable without the assistance of a person who is technically adept. Some metadata,such as the “date last accessed” or “date last modified” information, can be changed by the simple act of auser opening or accessing the electronic record. In cases where this very information is relevant to thelitigation, it is critical to take special steps to preserve this metadata. This will generally involve retainingthe services of a third party forensic consultant.

14 A helpful description of the differences between paper and electronic records is found in Section 3 of theIntroduction to the Sedona Canada Principles (“How are Electronic Documents Different from PaperDocuments?”).

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document retention/destruction policy;

(b) ensure that potentially relevant documents are not modified – an issue that arisesparticularly in the case of electronically stored information (which may be modifiedby the simple act of accessing the information); and

(c) ensure that potentially relevant documents remain accessible – again, an issue thatarises particularly in the case of electronically stored information, which may requireparticular forms of software or hardware to remain readable.

Note that you must preserve (and disclose the existence of) both privileged and non-privilegeddocuments. However, privileged documents will not be produced to any opposing party.

Implementing a litigation hold does not entail freezing all of your records. Rather, the preservationobligation requires freezing, temporarily, only the appropriate subset of electronically storedinformation, and preserving hard copy documents, that are potentially relevant to the issues in theaction.

E. What Documents Must Be Disclosed: You are required to individually identify toopposing parties in the litigation all relevant documents, privileged or not. The obligation todisclose is satisfied by providing the opposing parties with a sworn affidavit of documents (that wewill prepare on your behalf) that lists all relevant documents in your possession, control or power.In the affidavit of documents, you must swear that you have searched your records and made allappropriate inquiries, so as to ensure that all documents that are relevant to the issues in the action,and that are within your possession, control or power, are listed in the affidavit. Documents that arerelevant but not privileged are listed in Schedule A to the affidavit of documents. It is thesedocuments that will need to be produced to opposing parties. Privileged documents are listed inSchedule B to the affidavit of documents. These documents will not need to be produced as long asthe assertion of privilege is valid and privilege is not waived. Finally, relevant documents that areno longer in your possession, control or power are to be listed in Schedule C to the affidavit ofdocuments.

F. What Documents Must Be Produced: The obligation to produce documents to opposingparties applies only to relevant, non-privileged documents listed in Schedule A to the affidavit ofdocuments. Privileged documents are not produced unless privilege is waived. Irrelevantdocuments do not need to be produced. As noted, therefore, the documents that are produced to theopposing parties will be only a subset of the broader category of potentially relevant documentsinitially subject to the obligation to preserve. Opposing parties are required to pay the cost ofmaking a copy of the productions, although not the cost of preserving them and identifying them asrelevant.

G. What Makes a Document “Relevant”: The courts have taken a broad approach todetermining the relevance of documents. Any document that may have a bearing on any of theissues in the lawsuit is generally considered to be relevant and therefore subject to theobligations to preserve, disclose and produce.

Documents must be disclosed even though they may assist adverse parties and may be harmful toyour case. The documentary disclosure process is designed to ensure that the Court and all parties

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to the litigation are made aware of all relevant documents pertaining to the issues in the case.

In identifying the documents that you are obliged to preserve, disclose or produce, if there is anydoubt as to the possible relevance of a particular document or class of document, please contactus so that we can consider it. It is critical that in the first instance all documents that could in anyway be relevant are brought to our attention.

H. What Documents are Within Your “Control or Power”: You are required to discloseand produce not only documents that you possess, but also those within your “control or power”.The affected documents include any documents that you have the ability to possess or to obtainfrom others, such as from employers, companies with which you are involved, banks,professionals (such as accountants or lawyers), the government, insurers, and third party serviceproviders.

IV. PRESERVATION – IMPLEMENTING A LITIGATION HOLD

The obligation to preserve all potentially relevant documents requires the implementation of alitigation hold as soon as you reasonably anticipate that litigation will occur.

A. Steps in a Litigation Hold: You should ensure, at a minimum, that you take thefollowing steps to preserve documents potentially relevant to the litigation.

1. Consider whether to stop ordinary course document destruction: The first step is todetermine whether there are potentially relevant documents that will be destroyedthrough the operation of an ordinary course document destruction or recycling policy,whether yours or that of an employer or company with which you are involved. If so,you must determine promptly what steps should be taken to preserve copies of thedocuments. It will ordinarily be necessary to ensure that:

(i) potentially relevant hard copy documents in storage that are scheduled tobe destroyed based on the expiry of a retention period in a retentionschedule are isolated and not destroyed;

(ii) consideration is given to whether any backup media contain potentiallyrelevant documents that are not located elsewhere (such that the backupmedia likely contain the only existing copy of the documents); if so, thesebackup media must be isolated and not recycled; and

(iii) if there is an applicable automatic email deletion program (e.g., thecontents of an email inbox is deleted after a specified number of days) thatwill cause the deletion of potentially relevant emails, the affected emailsare copied or segregated before deletion.

2. Address any other urgent issues that require immediate attention: If there are othercircumstances that could give rise to the loss of potentially relevant documents orinformation in the short term, immediate preservation steps should be taken. Advicefrom legal counsel should be sought on these issues.

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3. Identify preservation issues: You should consult with us promptly to identify appropriatepreservation measures, which may involve:

(a) identifying the individuals likely to have generated or stored relevant documents,including assistants, employers, companies with which you are involved, andthird parties;

(b) identifying the timeframe within which the events at issue in the litigationoccurred, so as to narrow the search for potentially relevant documents;

(c) identifying the software likely to have been used to generate relevantelectronically stored information;

(d) identifying the likely locations of relevant documents, taking into considerationgeography, operations, workflow and technology in use;

(e) identifying, if applicable, the personnel whose assistance is required to meetdiscovery obligations;

(f) determining whether it will be necessary or useful to use electronic search tools ormethodologies (e.g., key word searches) in order to locate potentially relevantdocuments;15

(g) determining whether it is necessary or appropriate in the context of the litigationto take steps to preserve or restore backup media,16 deleted electronic data,17 ormetadata. Relevant factors here include the likelihood that these records wouldinclude potentially relevant documents, as well as proportionality concerns –

15 Principle #7 of the Sedona Canada Principles states that “A party may satisfy its obligation to preserve,collect, review and produce electronically stored information in good faith by using electronic tools andprocesses such as data sampling, searching or by using selection criteria to collect potentially relevantelectronically stored information.” Comment 7.a indicates that as it may be impractical or prohibitivelyexpensive to review all information manually, parties and counsel should where possible agree in advanceon targeted selection criteria. Comment 7.b suggests various processing techniques to use in searchesincluding filtering, de-duplication, sampling and validation.

16 Comment 3.i of the Sedona Canada Principles states that, “[g]enerally, parties should not be required topreserve short-term disaster recovery backup media created in the ordinary course of business. Whenbackup media exist to restore electronic files that are lost due to system failures or through disasters such asfires, their contents are, by definition, duplicative of the contents of active computer systems at a specificpoint in time. Provided that the appropriate contents of the active system are preserved, preserving backupmedia on a going-forward basis will be redundant.” However, where a party retains its backup media for aconsiderable period of time, or uses them for archival purposes, this may result in relevant documents thatare not in the active system being available only in the backup media. In that case, “steps should promptlybe taken to preserve those archival media that are reasonably likely to contain relevant information notpresent as active data on the party’s systems.”

17 Principle #6 of the Sedona Canada Principles states that “A party should not be required, absent agreementor a court order based on demonstrated need and relevance, to search for or collect deleted or residualelectronically stored information.” Comment 6.a suggests that deleted or residual data that can only beaccessed through forensic means should not be presumed to be discoverable and ordinarily, searches forelectronically sorted information” will be restricted to a search of active data and reasonably accessibleonline sources. The “evaluation of the need for and relevance of such discovery should be analyzed on acase by case basis” as “only exceptional cases will turn on “deleted” or “discarded” information”.

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weighing the cost and other burdens of preservation against the likelihood oflocating relevant documents, the importance of the documents, the value andcomplexity of the case, and other factors);

(h) determining the appropriateness of taking forensic copies of potentially relevantelectronic data to avoid the possibility of the data being modified or overwritten;18

(i) determining whether there is electronically stored information that is relevant tothe litigation but that continues to be actively used in the course of business and,if so, determining what steps should be taken to preserve one or more forensic ornon-forensic copies of the electronically stored information at particular points intime;

(j) determining whether there are potentially relevant documents that were createdusing older forms of software or stored in older media that are no longeraccessible and, if so, determining appropriate means of accessing thesedocuments; and

(k) determining whether it is necessary or appropriate to retain a third party consultant toassist in identifying and preserving relevant electronically stored information and, if so,identifying the required areas of expertise.19

As noted, you should discuss these issues with us at an early stage. In many cases, it willnot be necessary to take some of these steps.

4. Notify persons with potentially relevant documents: You should promptly inform allpersons who may be custodians of potentially relevant documents that are within yourpossession, control or power of the need to preserve these documents in their originalformat without modification.20 The custodians should be instructed not to destroy, deleteor modify electronically stored information in any way, including by accessing files thatare otherwise inactive (which may alter the metadata) or by packing, compressing,purging, disposing of files or parts of files, or automatic overwriting. We can assist youin preparing a notice or in contacting the custodians for you.

5. Maintain an audit trail: It is important to keep detailed records of all preservation steps,including decisions made, search parameters used, locations searched, and custodianscontacted. You should also consider the need to keep chain of custody logs for

18 Comment 4.c of the Sedona Canada Principles suggests that “[w]hile the making of bit-level images of harddrives is useful in selective cases for the preservation phase, the further processing of the total contents ofthe drive should not be required unless the nature of the matter warrants the cost and burden. Makingforensic image backups of computers is only the first step in a potentially expensive, complex, and difficultprocess of data analysis. It can divert litigation into side issues involving the interpretation of ambiguousforensic evidence.” Note that it is difficult in practice to make a forensic copy of a server, as servers aretypically not able to be brought out of service for copying.

19 Counsel may wish to identify appropriate third party consultants to assist the client in ensuring that allavailable sources of potentially relevant documents have been canvassed, if the client does not have thenecessary resources in-house.

20 It may be helpful for counsel to provide to the client a list of known custodians who should receive thelitigation hold notice.

12

electronically stored information that is preserved and transmitted to third partyconsultants or to us. It may become necessary later in the litigation process to establishthe chain of custody of certain electronic records, in order to demonstrate theirauthenticity and reliability. Again, we can discuss this process with you.

6. Meet and confer with opposing parties: We should confer with opposing counsel early inthe litigation to discuss preservation issues and an agreed discovery plan.21 Theimplementation of an agreed plan may help to guide you in conducting its preservationsteps, and to protect you against allegations of spoliation.22 One additional purpose of thediscovery planning (or “meet and confer”) session may be to negotiate the allocation ofcosts associated with preserving and reviewing certain classes of potentially relevantdocuments. Discovery planning sessions will be mandatory in Ontario effective January1, 2010.23 We should discuss the approach to a discovery planning session in this case.

7. Collect the documents: Based on the various determinations made about what documentsshould be preserved, and about the proper method of preservation, you or we shouldproceed to collect the potentially relevant documents, or to have them collected by a thirdparty, as appropriate. We will discuss with you the appropriate process for this collectionstage.

B. Proportionality in the Litigation Hold: Many preservation steps involved inimplementing a litigation hold could be relatively costly, or otherwise burdensome. In complexcases involving significant dollar values, these costs and other burdens may be relatively minorwhen compared to the importance of preserving and collecting all potentially relevantdocuments. In many cases, though, a balancing must take place between taking reasonablepreservation steps and keeping the costs of preservation within a reasonable range, in light of thenature and dollar value of the case, uncertainty regarding the scope of the factual and legal issuesin the case, and other factors.24

21 As noted, Principle #4 of the Sedona Canada Principles states that “Counsel and parties should meet andconfer as soon as practicable and on an ongoing basis, regarding the identification, preservation, collection,review and production of electronically stored information.” Principle #8 states that “Parties should agree asearly as possible in the litigation process on the format in which electronically stored information will beproduced. Parties should also agree on the format, content and organization of information to be exchangedin any required list of documents as part of the discovery process.”

22 In this regard, see Model Document #1: Discovery Agreement, and Model Document #2: PreservationAgreement.

23 Rule 29.1 of the Ontario Rules of Civil Procedure comes into force on January 1, 2010 and requires partiesseeking discovery to agree upon a written discovery plan for the action that addresses the intended scope ofdocumentary discovery taking into account proportionality issues, dates for service of affidavits ofdocuments, information regarding the timing, costs and manner of production of documents, the names ofdiscovery witnesses, information regarding the timing and length of examinations for discovery, and anyother information intended to result in the expeditious and cost-effective completion of the discoveryprocess in a manner that is proportionate to the importance and complexity of the action. The rule requiresparties to consult and have regard to the Sedona Canada Principles in preparing the discovery plan.

24 As noted above, Principle #2 of the Sedona Canada Principles states that “In any proceeding, the partiesshould ensure that steps taken in the discovery process are proportionate, taking into account (i) the natureand scope of the litigation, including the importance and complexity of the issues, interest and amounts atstake; (ii) the relevance of the available electronically stored information; (iii) its importance to the court’s

13

We will be able to advise you on preservation steps you should consider in the circumstances ofthis case, and on the associated risks if these steps are not taken.25 Depending on the outcome ofthose discussions, we may be able to recommend certain modifications to the broad preservationand production obligations set forth in this memorandum.26

V. DISCLOSURE AND PRODUCTION

A. Arrangements for Processing Documents: Your documents need to be readied for reviewby counsel and disclosure and production to the opposing parties. Generally speaking, in casesinvolving a large volume of documents, particularly electronic documents, we recommend retaininga third party litigation support vendor to scan or input the documents into a litigation supportsoftware program, and to “code” the documents, which involves inputting identifying informationabout the documents (author, recipient, date, document source, etc.) into the same program. It isusually most cost effective to proceed this way, and there are several associated strategic benefits.In cases involving smaller volumes of documents, we may recommend performing the documentprocessing tasks internally.

B. Document Review: Once the documents are collected and have been inputted into thelitigation support software program, they will need to be reviewed for relevance, privilege and, insome cases, confidentiality or privacy. It is our role as legal counsel, in coordination with you, tomake these determinations of relevance and privilege, in order to identify which documents must bedisclosed and produced.

C. Privilege: As noted above, the existence of documents that are subject to a claim ofprivilege must be disclosed in the affidavit of documents, but copies of the documents need not beproduced. The most common types of privilege are solicitor-client privilege, litigation privilege,settlement privilege and common interest privilege. Solicitor-client privilege generally protects allcommunications between a party and its legal counsel with respect to the giving and receiving oflegal advice. Litigation privilege generally protects documents which are produced or brought intoexistence for the dominant purpose of aiding in the conduct of litigation. Settlement privilegeprotects communications made on a without prejudice basis with a view to resolving the dispute

adjudication in a given case; and (iv) the costs, burden and delay that may be imposed on the parties to dealwith electronically stored information.”

25 Principle #5 of the Sedona Canada Principles states that “The parties should be prepared to produce relevantelectronically stored information that is reasonably accessible in terms of cost and burden.” Comment 5.asuggests that given the volume and technical challenges associated with the discovery of electronicallystored information, the parties engage in a cost benefit analysis, weighing the “cost of identifying andretrieving the information from each potential source against the likelihood that the source will yield unique,necessary and relevant information”. Counsel are encouraged to exercise judgment based on a reasonablegood faith inquiry having regard to the location and cost of recovery or preservation. The more costly andburdensome the effort that will be required to access a particular source “the more certain the parties need tobe that the source will yield responsive information”. Comment 5.a suggests that, if potentially relevantdocuments exist in a format that is not “readily usable”, cost-shifting may be appropriate.

26 See Comment 3.a of the Sedona Canada Principles: “The general obligation to preserve evidence extends toelectronically stored information but must be balanced against the party’s right to continue to manage itselectronic information in an economically reasonable manner, including routinely overwriting electronicinformation in appropriate cases. See also Comment 3.c, and the discussion of the need for parties to takereasonable and good faith steps to preserve information relevant to issues in an action.

14

giving rise to the litigation. Common interest privilege protects communications made in somecircumstances where two parties share a common goal in opposition to other parties, such as wheretwo defendants communicate in furtherance of making a common defence to the plaintiff’s case.

We will review all potentially relevant documents to determine whether a claim of privilege shouldproperly be asserted. In some cases, it may be necessary to produce a document that containsrelevant, non-privileged information, but to redact (i.e., blacken out) certain privileged text in thedocument.

D. Ongoing Obligations: The obligation to preserve, disclose and produce relevantdocuments is ongoing during the litigation. Steps should be taken to ensure that any policyregarding destruction of documents on a routine basis does not result in the loss of relevantdocuments over time. All relevant documents created or obtained in the future need to be providedto us on an on-going basis so that they can be disclosed and produced as appropriate.

E. Restrictions on Adverse Party’s Use of Documents: With certain limited exceptions,documents and information produced by a party in a lawsuit may be used only for purposes of thelawsuit, and may not be used for any other purpose, including in any other lawsuit. This restrictionapplies to information disclosed by you and by opposing parties during oral discovery (and to thetranscripts of oral discovery) as well as to documents produced. Accordingly, the parties must takesteps to ensure that documents and information obtained from other parties in the course of thelawsuit are not disclosed to other persons or used for other purposes. A court can relieve a partyfrom the burden of the confidentiality obligation. Further, notwithstanding the confidentialityobligation, there is a risk of public disclosure of otherwise private information. Accordingly, if youhave any concerns regarding the possible disclosure of your confidential documents or information,please discuss those concerns with us.

VI. CONCLUSION

We should discuss as soon as possible the preservation steps to be taken in implementing a litigationhold, as well as the appropriate process for collecting and processing the documents. We shouldalso discuss the overall timing of the steps in the documentary discovery process up to theproduction of your relevant documents.

If you have any questions or concerns regarding the topics addressed in this memo, please feel freeto contact us.

3.4.3 PRESERVATION LETTER (TO BE SENT BY OPPOSINGCOUNSEL)

`


MODEL DOCUMENT #5:

PRESERVATION LETTER(TO BE SENT TO OPPOSING COUNSEL)


The preservation letter serves three principal purposes: to educate, to facilitate the discoveryprocess, and to give notice of the sender’s legal position regarding the obligation to preserverelevant documents.1

Education: Opposing parties may not be aware of their obligation to preserve relevant documents(including electronically stored information), nor of the extent of the obligation, or the stepsrequired to fulfill the obligation. The function of the preservation letter is to provide thisinformation.

Facilitating discovery: In cases where there are specific documents or classes of documents thatcounsel knows should be preserved, or there are specific known custodians of relevantdocuments, the letter can be used to identify those. By ensuring the obligation to preserve isaddressed at the outset of the litigation, counsel may be able to avert delay, or discovery disputeslater in the proceedings.

Notification: The preservation letter may also be relevant in the event an issue of spoliationarises later in the proceedings, as the sending of the letter will have served to put the opposingparty on notice of the nature and extent of the obligation not to destroy or lose custody ofrelevant documents.

Proportionality

Counsel sending a preservation letter need to consider carefully the application of theproportionality principle to the opposing party’s obligation to preserve documents, and to craftthe letter accordingly for the individual case.2

1 The word “document” is used in this Model Document in its broadest sense, as meaning “information recordedin any form, including electronically stored information”. The word “document” is used interchangeably withthe word “record”.

2 Principle #2 of the Sedona Canada Principles states that “In any proceeding, the parties should ensure that stepstaken in the discovery process are proportionate, taking into account (i) the nature and scope of the litigation,including the importance and complexity of the issues, interest and amounts at stake; (ii) the relevance of theavailable electronically stored information; (iii) its importance to the court’s adjudication in a given case; and

2

Principally, the concern is one of ensuring that it is reasonable (i.e., proportionate) for the senderto assert the preservation obligations set out in the letter. It may be unduly costly or burdensomein a particular case to require that the opposing party take certain types of preservation steps.Counsel may also be concerned about proportionality from the perspective of their own client, inthe sense that any preservation obligation asserted against the opposing party in the letter willlikely be asserted against the client. If the client is not prepared to comply with the samepreservation obligation, in many cases it will not be reasonable to assert that it should becomplied with by the other side.

Annotations

Annotations are included at various points throughout the model document, identifying issuesthat counsel may wish to consider. Many of the annotations refer to The Sedona CanadaPrinciples Addressing Electronic Discovery (the “Sedona Canada Principles”). The SedonaCanada Principles are a set of national guidelines for e-discovery in Canada, which reflect bothexisting legal principles and a set of identified best practices. The Sedona Canada Principles areintended to be compatible with the discovery rules in all Canadian jurisdictions. EffectiveJanuary 1, 2010, civil litigants in Ontario will be required, pursuant to Rule 29.1 of the Rules ofCivil Procedure, to consult and have regard to the Sedona Canada Principles in preparing adiscovery plan for an action. A copy of the Sedona Canada Principles may be downloaded fromwww.thesedonaconference.org, where they are found under the list of publications for WorkingGroup 7.

The annotations are included for the benefit of counsel, who will presumably wish to delete theannotations, or to incorporate parts of them into the text of the letter, prior to sending the letter tothe opposing party.

Note: This model document has been prepared and made available to the public by the OntarioE-Discovery Implementation Committee for educational purposes, to facilitate the informed,efficient and proportionate use of e-discovery in litigation. It is not provided as legal or technicaladvice and should not be relied upon as such. This document has been re-produced by KorbitecInc. with the express permission of the Ontario Bar Association.

(iv) the costs, burden and delay that may be imposed on the parties to deal with electronically storedinformation.” Principle #2 is explicitly reflected, effective January 1, 2010, in the following Rules of CivilProcedure in Ontario: rules 1.04(1.1), 20.05(2), 29.1, and 29.2.

March 29, 2010

Mr. Tom MichaelsSmith & PartnersBarristers & Solicitors12345 King StreetHamilton, OntarioM2Y 8G3

Dear Mr. Michaels,


We are the solicitors for Suzie Smith. The purpose of this letter is to confirm theobligation of **Press F11 and insert (name of party receiving letter)** to take reasonable steps topreserve all documents relevant to the Action.3

The term “document” as used in the Ontario Rules of Civil Procedure has a very broadscope, referring to any form of recorded communication.4 It includes electronically storedinformation.5

Preservation of documents means taking reasonable steps to:

(a) ensure that relevant documents (including electronically stored information) arenot destroyed, lost or relinquished to others, either intentionally, or inadvertentlysuch as through the implementation of an ordinary course documentretention/destruction policy;

(b) ensure that relevant documents are not modified – an issue that arises particularlyin the case of electronically stored information (which may be modified by thesimple act of accessing the information), and in the case of documents used on anongoing basis in the operation of the business; and

3 Principle #3 of the Sedona Canada Principles states that “As soon as litigation is reasonably anticipated, partiesmust consider their obligation to take reasonable and good faith steps to preserve potentially relevantelectronically stored information.” However, it is recognized that “it is unreasonable to expect organizations totake every conceivable step to preserve all electronically stored information that may be potentially relevant.”

4 This portion of the letter and other references to the Ontario Rules of Civil Procedure will need to be modifiedin the event the litigation is in Federal Court or this document is to be used in another jurisdiction.

5 An alternative approach in this part of the letter is to list examples of the many different types of records thatmay require preservation. This approach is not recommended, because it adds nothing to the preservationobligation, and can give the preservation letter a disproportionately onerous tone. However, if there aredistinctive types of records that may be relevant to the particular proceeding and that should be identified forpurposes of preservation because they might not otherwise be preserved for purposes of the litigation (e.g.,voice mail, backup media, etc.), this can be done here.

-4-

(c) ensure that relevant documents remain accessible – again, an issue that arisesparticularly in the case of electronically stored information, which may requireparticular forms of software or hardware to remain readable.

Suzie Smith specifically requests and requires that **Press F11 and insert (name of partyreceiving letter)** take all reasonable steps to preserve all documents in its possession, powerand control that are relevant to the Action. This includes preservation of documents stored onyour client’s behalf by third parties (such as banks, professionals (e.g., accountants or lawyers),insurers, third party service providers, affiliated companies, data warehouses or internet serviceproviders). In the case of electronically stored information, please ensure that relevant data ispreserved intact and unmodified in its original electronic form.6

Suzie Smith is specifically concerned about certain classes of records that may bedestroyed or disposed of, inadvertently or otherwise, in the short term. Specifically, **Press F11and insert (explanation of the concern - e.g., re imminent destruction of backup media,7 recordsbeing generated in real time, deleted files, etc.. Please take immediate steps to ensure that theseclasses of documents are preserved **Press F11 and insert (in the following manner:)** 8

We believe that at least the following persons possess, authored or received relevantdocuments:

**Press F11 and insert (name)**



As part of the broader process of preserving relevant documents, please ensure thatreasonable steps are taken to preserve these individuals’ relevant documents including, in thecase of electronically stored information, relevant metadata.9 Please ensure that your client

6 Principle #5 of the Sedona Canada Principles states that “The parties should be prepared to produce all relevantelectronically stored information that is reasonably accessible in terms of cost and burden.” This incorporatesthe concept of proportionality. As noted in Comment 5.a, a cost benefit analysis should be undertaken whichweighs “the cost of identifying and retrieving the information from each potential source against the likelihoodthat the source will yield unique, necessary and relevant information”. Counsel are encouraged to exercisejudgement based on a good faith inquiry and analysis. The more costly and burdensome the effort required toaccess a particular source, “the more certain the parties need to be that the source will yield responsiveinformation”.

7 Consider carefully whether to require preservation of backup media. Relying upon backup media in order tolocate relevant records is generally costly and inefficient. Backup media should be preserved only where theycontain unique information that cannot otherwise be obtained, or where other special circumstances apply.Comment 3.f of the Sedona Canada Principles notes that extreme preservation measures are not necessarilyrequired, and Comment 3.i states that “Generally, parties should not be required to preserve short-term disasterrecovery backup media created in the ordinary course of business.”

8 This paragraph and the following paragraph should be deleted if inapplicable.9 If metadata is known to be important to the case, counsel may wish to address in more detail the need to

preserve metadata, including fields to be preserved, the method of preservation, etc.

-5-

immediately notifies these individuals of the need to preserve relevant documents, in the courseof implementing its litigation hold.10

We will be relying upon this letter in court to evidence our request and notification ofyour client’s preservation obligations.

We would like to arrange a meeting to discuss discovery issues in the Action, with a viewto reaching agreement on a discovery plan addressing what records should be preserved andproduced, the method of exchange of documents, examinations for discovery, and various relatedmatters.11 **Press F11 and insert (In this regard, please see the attached list of proposed topicsfor discussion/please see the attached draft agreement on documentary discovery issues.)** 12

Please contact me at your earliest convenience to discuss.

We thank you in advance for your anticipated co-operation.

Yours very truly,GREENBERG AND GRIFFIN

Frank SmithArticling StudentFS/ew

10 Comment 3.d of the Sedona Canada Principles states that “Upon determining that litigation has triggered apreservation obligation, the party should communicate to affected persons the need for and scope of preservingrelevant information in both paper and electronic form. …The notice also may include non-parties who have intheir possession, control or power information relating to matters in issue in the action.” Counsel shouldconsider expanding the request to specifically name third parties who may have relevant electronically storedinformation.

11 Principle #4 of the Sedona Canada Principles states that “Counsel and parties should meet and confer as soonas practicable and on an ongoing basis, regarding the identification, preservation, collection, review andproduction of electronically stored information.” Rule 29.1 of the Ontario Rules of Civil Procedure comes intoforce on January 1, 2010 and requires party seeking discovery to agree upon a written discovery plan for theaction that addresses the intended scope of documentary discovery taking into account proportionality issues,dates for service of affidavits of documents, information regarding the timing, costs and manner of productionof documents, the names of discovery witnesses, information regarding the timing and length of examinationsfor discovery, and any other information intended to result in the expeditious and cost-effective completion ofthe discovery process in a manner that is proportionate to the importance and complexity of the action. The rulerequires parties to consult and have regard to the Sedona Canada Principles in preparing the discovery plan.

12 For a list of topics for discussion at the meet and confer session (set out in the form of a model discoveryagreement), see Model Document #1: Discovery Agreement.

3.4.4 PRESERVATION LETTER (TO BE SENT TO DEFENDANT ORPROPOSED DEFENDANT)


MODEL DOCUMENT #6:

PRESERVATION LETTER(TO BE SENT TO UNREPRESENTED PARTY)


The preservation letter serves three principal purposes: to educate, to facilitate the discoveryprocess, and to give notice of the sender’s legal position regarding the obligation to preserverelevant documents.1

Education: Opposing parties, especially unrepresented parties, may not be aware of theirobligation to preserve relevant documents (including electronically stored information), nor ofthe extent of the obligation, or the steps required to fulfill the obligation. The function of thepreservation letter is to provide this information.

Facilitating discovery: In cases where there are specific documents or classes of documents thatcounsel knows should be preserved, or there are specific known custodians of relevantdocuments, the letter can be used to identify those. By ensuring the obligation to preserve isaddressed at the outset of the litigation, counsel may be able to avert delay, or discovery disputeslater in the proceedings.

Notification: The preservation letter may also be relevant in the event an issue of spoliationarises later in the proceedings, as the sending of the letter will have served to put the opposingparty on notice of the nature and extent of the obligation not to destroy or lose custody ofrelevant documents.

Proportionality

Counsel sending a preservation letter need to consider carefully the application of theproportionality principle to the opposing party’s obligation to preserve documents, and to craftthe letter accordingly for the individual case.2

1 The word “document” is used in this Model Document in its broadest sense, as meaning “information recordedin any form, including electronically stored information”. The word “document” is used interchangeably withthe word “record”.

2 Principle #2 of the Sedona Canada Principles states that “In any proceeding, the parties should ensure that stepstaken in the discovery process are proportionate, taking into account (i) the nature and scope of the litigation,including the importance and complexity of the issues, interests and amounts at stake; (ii) the relevance of theavailable electronically stored information; (iii) its importance to the court’s adjudication in a given case; and

2

Principally, the concern is one of ensuring that it is reasonable (i.e., proportionate) for the senderto assert the preservation obligations set out in the letter. It may be unduly costly or burdensomein a particular case to require that the opposing party take certain types of preservation steps.Counsel may also be concerned about proportionality from the perspective of their own client, inthe sense that any preservation obligation asserted against the opposing party in the letter willlikely be asserted against the client. If the client is not prepared to comply with the samepreservation obligation, in many cases it will not be reasonable to assert that it should becomplied with by the other side.

Annotations

Annotations are included at various points throughout the model document, identifying issuesthat counsel may wish to consider. Many of the annotations refer to The Sedona CanadaPrinciples Addressing Electronic Discovery (the “Sedona Canada Principles”). The SedonaCanada Principles are a set of national guidelines for e-discovery in Canada, which reflect bothexisting legal principles and a set of identified best practices. The Sedona Canada Principles areintended to be compatible with the discovery rules in all Canadian jurisdictions. EffectiveJanuary 1, 2010, civil litigants in Ontario will be required, pursuant to Rule 29.1 of the Rules ofCivil Procedure, to consult and have regard to the Sedona Canada Principles in preparing adiscovery plan for an action. A copy of the Sedona Canada Principles may be downloaded fromwww.thesedonaconference.org, where they are found under the list of publications for WorkingGroup 7.


Note: This model document has been prepared and made available to the public by the OntarioE-Discovery Implementation Committee for educational purposes, to facilitate the informed,efficient and proportionate use of e-discovery in litigation. It is not provided as legal or technicaladvice and should not be relied upon as such. This document has been re-produced by KorbitecInc. with the express permission of the Ontario Bar Association.

(iv) the costs, burden and delay that may be imposed on the parties to deal with electronically storedinformation.” Principle #2 is explicitly reflected, effective January 1, 2010, in the following Rules of CivilProcedure in Ontario: rules 1.04(1.1), 20.05(2), 29.1, and 29.2.

March 29, 2010

Mr. Tom MichaelsSmith & PartnersBarristers & Solicitors12345 King StreetHamilton, OntarioM2Y 8G3

Dear Mr. Michaels,


We are the solicitors for Suzie Smith. The Defendant has commenced an action againstyou (the “Action”), seeking **Press F11 and insert (describe relief sought)**. Enclosed withthis letter is a copy of the Statement of Claim, which is being formally served upon you. Youshould provide both this letter and the Statement of Claim to your lawyer as soon as possible.3

The purpose of this letter is to confirm your obligation to take reasonable steps topreserve all documents relevant to the Action.4

The term “document” as used in the Ontario Rules of Civil Procedure has a very broadscope, referring to any form of recorded communication.5 It includes electronically storedinformation.6

Preservation of documents means taking reasonable steps to:

(a) ensure that relevant documents (including electronically stored information) arenot destroyed, lost or relinquished to others, either intentionally, or inadvertentlysuch as through the implementation of an ordinary course documentretention/destruction policy;

3 This first paragraph can be modified as appropriate where the preservation letter is being sent prior to initiationof the action, where the letter is being sent other than at the time of service of a statement of claim, or inproceedings that are subject to procedural rules other than the Ontario Rules of Civil Procedure.

4 Principle #3 of the Sedona Canada Principles states that “As soon as litigation is reasonably anticipated, partiesmust consider their obligation to take reasonable and good faith steps to preserve potentially relevantelectronically stored information.” However, it is recognized that “it is unreasonable to expect organizations totake every conceivable step to preserve all electronically stored information that may be potentially relevant.”

5 This portion of the letter and other references to the Ontario Rules of Civil Procedure will need to be modifiedin the event the litigation is in Federal Court or this document is to be used in another jurisdiction.

6 An alternative approach in this part of the letter is to list examples of the many different types of records thatmay require preservation. This approach is not recommended, because it adds nothing to the preservationobligation, and can give the preservation letter a disproportionately onerous tone. However, if there aredistinctive types of records that may be relevant to the particular proceeding and that should be identified forpurposes of preservation because they might not otherwise be preserved for purposes of the litigation (e.g.,voice mail, backup media, etc.), this can be done here.

-4-

(b) ensure that relevant documents are not modified – an issue that arises particularlyin the case of electronically stored information (which may be modified by thesimple act of accessing the information), and in the case of documents used on anongoing basis in the operation of the business; and

(c) ensure that relevant documents remain accessible – again, an issue that arisesparticularly in the case of electronically stored information, which may requireparticular forms of software or hardware to remain readable.

Suzie Smith specifically requests and requires that you take all reasonable steps topreserve all documents in your possession, power and control that are relevant to the Action.This includes preservation of documents stored on your behalf by third parties (such as banks,professionals (e.g., accountants or lawyers), insurers, third party service providers, affiliatedcompanies, data warehouses or internet service providers). In the case of electronically storedinformation, please ensure that relevant data is preserved intact and unmodified in its originalelectronic form.7

Suzie Smith is specifically concerned about certain classes of records that may bedestroyed or disposed of, inadvertently or otherwise, in the short term. Specifically, **Press F11and insert (explanation of the concern - e.g., re imminent destruction of backup media,8 recordsbeing generated in real time, deleted files, etc.. Please take immediate steps to ensure that theseclasses of documents are preserved **Press F11 and insert (in the following manner:)**.9

We believe that at least the following persons possess, authored or received relevantdocuments:




As part of the broader process of preserving relevant documents, please ensure thatreasonable steps are taken to preserve these individuals’ relevant documents including, in the

7 Principle #5 of the Sedona Canada Principles states that “The parties should be prepared to produce all relevantelectronically stored information that is reasonably accessible in terms of cost and burden.” This incorporatesthe concept of proportionality. As noted in Comment 5.a, a cost benefit analysis should be undertaken whichweighs “the cost of identifying and retrieving the information from each potential source against the likelihoodthat the source will yield unique, necessary and relevant information”. Counsel are encouraged to exercisejudgement based on a good faith inquiry and analysis. The more costly and burdensome the effort required toaccess a particular source, “the more certain the parties need to be that the source will yield responsiveinformation”.

8 Consider carefully whether to require preservation of backup media. Relying upon backup media in order tolocate relevant records is generally costly and inefficient. Backup media should be preserved only where theycontain unique information that cannot otherwise be obtained, or where other special circumstances apply.Comment 3.f of the Sedona Canada Principles notes that extreme preservation measures are not necessarilyrequired, and Comment 3.i states that “Generally, parties should not be required to preserve short-term disasterrecovery backup media created in the ordinary course of business.”

9 This paragraph and the following paragraph should be deleted if inapplicable.

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case of electronically stored information, relevant metadata.10 Please ensure that youimmediately notify these individuals of the need to preserve relevant documents, in the course ofimplementing your litigation hold.11

We will be relying upon this letter in court to evidence our request and notification ofyour preservation obligations.

We would like to arrange a meeting to discuss discovery issues in the Action, with a viewto reaching agreement on a discovery plan addressing what records should be preserved andproduced, the method of exchange of documents, examinations for discovery, and various relatedmatters.12 **Press F11 and insert (In this regard, please see the attached list of proposed topicsfor discussion/please see the attached draft agreement on documentary discovery issues.)**13

Please have your lawyer contact me at your earliest convenience to discuss.

We thank you in advance for your anticipated co-operation.

Yours very truly,GREENBERG AND GRIFFIN

Frank SmithArticling StudentFS/ew

10 If metadata is known to be important to the case, counsel may wish to address in more detail the need topreserve metadata, including fields to be preserved, the method of preservation, etc.

11 Comment 3.d of the Sedona Canada Principles states that “Upon determining that litigation has triggered apreservation obligation, the party should communicate to affected persons the need for and scope of preservingrelevant information in both paper and electronic form. …The notice also may include non-parties who have intheir possession, control or power information relating to matters in issue in the action.” Counsel shouldconsider expanding the request to specifically name third parties who may have relevant electronically storedinformation.

12 Principle #4 of the Sedona Canada Principles states that “Counsel and parties should meet and confer as soonas practicable and on an ongoing basis, regarding the identification, preservation, collection, review andproduction of electronically stored information.” Rule 29.1 of the Ontario Rules of Civil Procedure comes intoforce on January 1, 2010 and requires party seeking discovery to agree upon a written discovery plan for theaction that addresses the intended scope of documentary discovery taking into account proportionality issues,dates for service of affidavits of documents, information regarding the timing, costs and manner of productionof documents, the names of discovery witnesses, information regarding the timing and length of examinationsfor discovery, and any other information intended to result in the expeditious and cost-effective completion ofthe discovery process in a manner that is proportionate to the importance and complexity of the action. The rulerequires parties to consult and have regard to the Sedona Canada Principles in preparing the discovery plan.

13 For a list of topics for discussion at the meet and confer session (set out in the form of a model discoveryagreement), see Model Document #1: Discovery Agreement.

3.4.5 LETTER CONFIRMING DISCOVERY AGREEMENT


SAMPLE DOCUMENT #1:

LETTER CONFIRMING DISCOVERY AGREEMENT


There are different ways of confirming a discovery plan or discovery agreement, including by wayof confirming letter, consent order, or a detailed agreement. This sample letter is provided as anillustrative example from a hypothetical case of how counsel might seek to confirm by letter theresults of a discovery planning (or “meet and confer”) session between the parties with respect todocumentary and oral discovery. The hypothetical example involves a relatively uncomplicatedmatter, in which e-discovery is nonetheless important. The letter could be modified as appropriatefor more complex matters. Note that, in Ontario, Rule 29.1 of the Rules of Civil Procedurerequires parties to agree upon a discovery plan addressing a number of discovery issues.

It is important to stress that, unlike the Model Documents prepared by the E-DiscoveryImplementation Committee, this letter involves a case-specific example and contemplates certaincase-specific strategic choices having already been made by the parties about modes of documentexchange and other matters. The letter is not presented as a recommendation that these samechoices should be made in all matters. Rather, counsel and their client must make these strategicdecisions based on the circumstances of each particular case. The purpose of this illustrativeexample is to show how such a confirming letter might be crafted using one hypothetical set ofparties, facts and choices. For the assistance of counsel who may wish to use parts of this exampleas a template, the case-specific text in the letter has been shaded in grey.

Before negotiating a discovery plan or discovery agreement involving a corporate client, counselshould seek to familiarize themselves with their client’s records systems, including their ITarchitecture and their records retention systems. It is recommended that, in appropriate cases, inwhich counsel are meeting to negotiate a discovery plan in a case involving significant quantitiesof electronic records, counsel should consider attending the meet and confer session with a clientrepresentative who is directly familiar with the IT issues associated with preserving and collectingthose records.

To the extent required, before negotiating a discovery agreement or discovery plan counsel shouldalready have taken steps to assist their client in preserving records that are relevant to the litigation.

Proportionality

In any legal proceeding, the parties should ensure that all steps taken in the discovery process areproportionate, taking into account, among other things, the importance and complexity of the case,the amounts and interests at stake, and the costs, delay, burden and benefit associated with eachstep.

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The principle of proportionality is relevant, in the first instance, in determining the extent to whichit is useful or necessary to confirm the results of a meet and confer session in a letter, or in a formalwritten agreement or a consent order. For a model discovery agreement, see Model Document #1:Discovery Agreement, Model Document #9A: Discovery Plan (Long Form) and Model Document#9B: Discovery Plan (Short Form).

The proportionality principle is also relevant in identifying the issues on which agreement shouldbe sought in a discovery plan or discovery agreement, and in determining the scope of thedocumentary discovery obligations to which the parties should agree.

Annotations

Annotations are included at various points throughout the model document, identifying issues thatthe parties may wish to consider. Many of the annotations refer to The Sedona Canada PrinciplesAddressing Electronic Discovery (the “Sedona Canada Principles”). Civil litigants in Ontario arerequired, pursuant to Rule 29.1 of the Rules of Civil Procedure, to consult and have regard to theSedona Canada Principles in preparing a discovery plan for an action. The Sedona CanadaPrinciples are a set of national guidelines for e-discovery in Canada, which reflect both existinglegal principles and a set of identified best practices. A copy of the Sedona Canada Principlesmay be downloaded from www.thesedonaconference.org, where they are found under the list ofpublications for Working Group 7.


Note regarding use of this document

This memorandum and all of the EIC’s model documents and other publications are available onthe Ontario Bar Association's website at:http://www.oba.org/En/publicaffairs_en/E-Discovery/model_precedents.aspx

This model document has been prepared and made available to the public by the EIC forinformational purposes. It is not provided as legal or technical advice and should not be reliedupon as such.

Publications of the EIC are copyrighted by the Ontario E-Discovery Implementation Committeeand all rights are reserved. Individuals may download these publications for their own use at nocharge. Law firms and other organizations may download these publications and make themavailable internally for individual use within the firm or organization. EIC publications may berepublished, copied or reprinted at no charge for non-profit purposes. Organizations and

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individuals may provide a link to the publications on the internet without charge provided thatproper attribution to the Ontario E-Discovery Implementation Committee is included. For furtherinformation, or to request permission to republish, copy or reprint for commercial profit, contactthe Chair of the Committee, David Outerbridge, at [email protected]. This document hasbeen reproduced by Korbitec Inc. with the express permission of the Ontario E-DiscoveryImplementation Committee.

Feedback on EIC materials

The EIC welcomes comments on all of its model documents and other publications. Anycomments or suggestions can be provided to Michele A. Wright at [email protected].

Greenberg and Griffin

Lisa J. SmithEmail: [email protected]: 416-333-3330Fax: 416-333-3331

January 16, 2013 File Number: PM Test for Quarterly

WITHOUT PREJUDICE

Gowling Lafleur Henderson LLP1 First Canadian Place100 King Street WestSuite 1600Toronto, Ontario M5X 1G5

Attention: Tom Jones

Pamela McQuaid99999 Main StreetBurlington, Ontario L7M 2V3

Dear

Re: Peter Griffin v Homer Simpson et al.Court File No.: 12-12345Our File No.: PM Test for Quarterly

Agreed Discovery Plan1

I confirm that our clients have agreed to the following discovery plan with respect to: (1) thepreservation, disclosure and production of electronic documents, and of paper documents inelectronic format; and (2) oral discovery.2

1 Principle #4 of the Sedona Canada Principles states that “Counsel and parties should meet and confer as soon aspracticable and on an ongoing basis, regarding the identification, preservation, collection, review and productionof electronically stored information.” This document is designed to confirm those points on which the partiesreach agreement. The parties may wish to have several meet and confer sessions over time (as suggested inPrinciple #4), and to enter into more than one agreement. The parties may also wish to use only some parts of thismodel confirming letter at any one time.

2 Rule 29.1 of the Ontario Rules of Civil Procedure requires parties to agree upon a written discovery plan for theaction that addresses the intended scope of documentary discovery taking into account proportionality issues,dates for service of affidavits of documents, information regarding the timing, costs and manner of production ofdocuments, the names of discovery witnesses, information regarding the timing and length of examinations fordiscovery, and any other information intended to result in the expeditious and cost-effective completion of thediscovery process in a manner that is proportionate to the importance and complexity of the action. The rulerequires parties to consult and have regard to the Sedona Canada Principles in preparing the discovery plan.

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Preservation3

a) Location of information

We have agreed that your client’s relevant documents are likely stored at the company’s location at100 South Street in Toronto, in paper and electronic files that are in the physical control of BobSmith, Alex Smythe and Frances Smitt. Each of these individuals uses a desktop computer and aBlackberry device. Messages on each of the Blackberry devices are routed through the company'sserver using Microsoft Exchange Server. Relevant documents may be contained on any of theseindividuals’ computers, as well as on the company's network server, where documents areorganized in a simple Windows directory hierarchy.

We have also agreed that our client’s relevant documents are likely stored at the company’slocation at 200 North Street in Ottawa, in paper and electronic files that are in the physical controlof Zane Grey and Jane Grey. Each of these individuals uses a desktop computer and a Blackberrydevice. Each of the Blackberry devices operates on a peer-to-peer basis, that is, without themessage being intercepted and/or recorded by the company server. Relevant documents may becontained on either of these individuals’ desktops, at Rogers (the provider of the Blackberryservice) or on the company server. Documents on the company server are organized in a simpleWindows directory hierarchy. The company uses EasyBooks for its financial record-keeping, andthis application can produce reports containing the information that will be relevant in this action.

b) General parameters

We have agreed that relevant documents will likely be in the form of e-mail messages,correspondence, memoranda, Excel spreadsheets and financial information relating to sales andcommissions.

We have also agreed that the relevant date range is January 1, 2005 to December 31, 2007, and tolimit documentary discovery for the time being to relevant information created or utilized withinthat period.

c) Steps to be taken to preserve information

We have agreed that our respective clients will immediately suspend any practices by whichrelevant documents or information may be automatically or manually disposed of, deleted orarchived. This includes, but is not limited to, the automatic deletion or destruction of e-mailmessages and paper documents.

3 Principle #3 of the Sedona Canada Principles states that “As soon as litigation is reasonably anticipated, partiesmust consider their obligation to take reasonable and good faith steps to preserve potentially relevantelectronically stored information.” The Sedona Canada Principles recognize that “it is unreasonable to expectorganizations to take every conceivable step to preserve all electronically stored information that may bepotentially relevant.” Comment 3.f states that “a reasonable inquiry based on good faith to identify and preserveactive and archival data should be sufficient.” The parties should therefore consider and discuss how and whererelevant information can be preserved in the most efficient and cost effective manner.

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We reached the following agreement with respect to backup media: Our client’s informationsystem is backed up by virtue of a number of redundant drives. Our client will include all of thesedrives in its performance of this preservation protocol. You advised me that your client backs upits server on a set of magnetic tapes that are cycled every seven days. Your client will remove thecurrent set of tapes from the current practice of cycling and will preserve these tapes as theycurrently exist. [Alternatively: We have agreed not to include backup media within the scope ofthe preservation protocol.]4

Our client will also contact Rogers immediately to advise them of the requirement to preservewhatever information is within their power, possession or control with respect to e-mail messagessent or received by the above-mentioned individuals. We will advise you of their response within10 days. We will also request production of the information from them, and disclose and produceany relevant, non-privileged documents to you as required.

For preservation purposes, each of our respective clients will make forensic copies of the drivescontained in the companies’ servers, and in each of the desktop computers used by the fiveindividuals named above.5

We have agreed that all of these steps to preserve relevant information will be taken within thenext 10 days. By January 15, 2009 you and I will confirm to each other that all of these steps havebeen taken.6

4 Relying upon backup media in order to locate relevant records is generally costly and inefficient. Backup mediashould be preserved only where they contain unique information that cannot otherwise be obtained, or whereother special circumstances apply. This paragraph should be drafted to reflect the circumstances of the specificcase.

5 The utility and cost efficiency of making forensic copies of drives depends on the circumstances of the case. Inless complicated matters such as that contemplated by this model confirming letter, forensic copying can be arelatively simple and inexpensive method of ensuring complete and accurate preservation of all relevantdocuments. Note, though, that Comment 4.c of the Sedona Canada Principles suggests that “[w]hile the makingof bit-level images of hard drives is useful in selective cases for the preservation phase, the further processing ofthe total contents of the drive should not be required unless the nature of the matter warrants the cost and burden.Making forensic image backups of computers is only the first step in a potentially expensive, complex, anddifficult process of data analysis. It can divert litigation into side issues involving the interpretation of ambiguousforensic evidence.” Note too that it is difficult in practice to make a forensic copy of a server, as servers aretypically not able to be brought out of service for copying.

6 The parties may wish to enter into a more detailed preservation agreement than that contemplated in this section.For this purpose, see for example Model Document #2: Preservation Agreement.

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Disclosure and Production7

a) Searching for documents and information

You advised me that your client uses an indexing application called EasyReach that has thecapability of searching by word across the entire network from any desktop on which it is installed.As I indicated, EasyReach does search publicly available information across the network, but notprivate information such as e-mail messages within a particular mailbox. In order to search withinan individual's mailbox, the search must be conducted from the individual’s workstation.

I confirm that you will conduct a search of all documents and information contained on yourclient’s network, including the personal computers of the individuals named above, using thefollowing search parameters:8

[search parameters]

Our client does not have a search application installed on its network. For the purpose of searchingfor relevant information, they intend to install an application called dtSearch, which hascapabilities similar to but more extensive than EasyReach. We will conduct a search of alldocuments and information contained on our client’s network, including the personal computers ofthe individuals named above, using the following search parameters:

[search parameters]

7 Principle #5 of the Sedona Canada Principles states that “The parties should be prepared to produce relevantelectronically stored information that is reasonably accessible in terms of cost and burden.” Comment 5.asuggests that given the volume and technical challenges associated with the discovery of electronically storedinformation, the parties engage in a cost benefit analysis, weighing the “cost of identifying and retrieving theinformation from each potential source against the likelihood that the source will yield unique, necessary andrelevant information”. Counsel are encouraged to exercise judgment based on a reasonable good faith inquiryhaving regard to the location and cost of recovery or preservation. The more costly and burdensome the effort thatwill be required to access a particular source “the more certain the parties need to be that the source will yieldresponsive information”. Comment 5.a suggests that, if potentially relevant documents exist in a format that isnot “readily usable”, cost-shifting may be appropriate.

8 Principle #7 of the Sedona Canada Principles states that “A party may satisfy its obligation to preserve, collect,review and produce electronically stored information in good faith by using electronic tools and processes such asdata sampling, searching or by using selection criteria to collect potentially relevant electronically storedinformation.” Comment 7.a indicates that as it may be impractical or prohibitively expensive to review allinformation manually, parties and counsel should where possible agree in advance on targeted selection criteria.Comment 7.b suggests various processing techniques to use in searches including filtering, de-duplication,sampling and validation.

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b) Affidavits of documents9

We have agreed that we will exchange affidavits of documents and all related information andproductions electronically, so that they can be downloaded into our respective case managementapplications.10 The exchange will occur by March 31, 2009. For this purpose, we have agreed thatthe schedules to the affidavits of documents will be exchanged as a delimited ASCII text file withcomma separated values (CSV). The information will be organized into the following fields:11

Unique document ID number (alpha-numeric, based on the format AAA00000000)Date of document (based on the format YYYY/MM/DD)Document typeAuthor, Author OrganizationRecipient, Recipient OrganizationType of privilege claimed, where applicable

The “Document Type” field will be populated using the following generic document types:

LetterEmailSpreadsheetReportMemoEtc

9 Principle #8 of the Sedona Canada Principles states that “Parties should agree as early as possible in the litigationprocess on the format in which electronically stored information will be produced. Parties should also agree onthe format, content and organization of information to be exchanged in any required list of documents as part ofthe discovery process.” Comment 8.c notes that, in British Columbia, counsel should refer to the PracticeDirection Re: Electronic Evidence, Supreme Court of British Columbia, July 2006, for detailed specificationsrelating to the exchange of electronic documents and document lists.

10 Exchange of records in paper form is not recommended. Comment 8.a of the Sedona Canada Principles statesthat “production of electronic documents and data should be made only in electronic format, unless the recipient issomehow disadvantaged and cannot effectively make use of a computer, or the volume of the documents to beproduced is minimal and metadata is known (and agreed by all parties) to be irrelevant”. Comment 8.a suggeststhat the practice of producing electronically stored information in paper form should be discouraged in mostcircumstances. Comments 8.b and 8.c suggest that parties attempt to agree on “methodology of production that(a) preserves metadata and allows it to be produced when relevant; (b) communicates accurately the content; (c)protects the integrity of the information; (d) allows for the creation of a version that can be redacted; (e) assigns aunique production identification number to each data item, and (f) can be readily imported into anyindustry-standard litigation review application”.

11 Fields of data to be exchanged can be customized depending on the nature of the document collection. Anelectronic document collection could take advantage of the metadata for purposes of coding and listing, which canresult in significant cost savings. Alternatively, in a combined collection (electronic and scanned paper) theparties can agree on a combination of fields, such as “DocDate” for the paper-based collection and “Date Sent”and “Date Received” for the e-collection. Comment 8.c of the Sedona Canada Principles states that “partiesshould agree on the format and organization of the document list so that the information that is ultimatelyexchanged between the parties is consistent. … The list should be exchanged in electronic format, whichfacilitates searching, sorting and reporting.”

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Documents that currently exist in paper form will be scanned, and OCR (optical characterrecognition) versions of the documents will be created. Documents that currently exist inelectronic form will be produced in electronic form. All productions will be exchanged as follows:We will exchange dii load files to provide for the links between the schedules to the affidavit ofdocument and the produced images of the documents, and with folders containing the documentimages in black and white single page TIFF images with a resolution of 300 dpi (dots per inch),along with OCR generated text.12

Privilege13

We agree that inadvertent production of otherwise privileged documents or information will notconstitute a waiver of the privilege attaching to the document or information, if reasonable goodfaith efforts have been made to identify and withhold privileged documents.

Other court documents

Counsel have agreed to accept service of all court documents electronically during the course oftheir respective retainers, except where it is not practicable to do so due to the size of thedocument. Documents will be delivered in searchable PDF format, either by e-mail or the deliveryof a DVD containing the document. Service of electronic court documents by e-mail will beacknowledged by opposing counsel as having been received.

Examinations for discovery

We have agreed that my client’s discovery witness will be Zane Grey and your client’s discoverywitness will be Bob Smith. We have agreed to restrict oral examinations for discovery to sevenhours per examining party, subject to possibly scheduling an additional one hour of examinationper party in connection with questions arising from answers to undertakings, and subject to anyadditional examination time ordered by the court in connection with a refusals motion orotherwise. My client’s representative will be examined for discovery on April 20, 2009 and yourclient’s representative will be examined on April 21, 2009.

The method of exchange of productions suggested in this paragraph is the method commonly used by counselwho wish to load the received productions into Summation or a similar litigation document managementapplication. In cases where counsel are not using such programs, the parties may wish to consider exchangingimages in other formats, such as pdf format with links between the affidavit schedules and the pdf images or, inthe case of emails, in native .pst files. Where the parties wish to exchange copies of some electronically storedinformation in their native format, that should be specified here.

13 The parties may wish to include more detailed provisions dealing with waiver of privilege than is set out here.Principle #9 of the Sedona Canada Principles states that “During the discovery process parties should agree to or,if necessary, seek judicial direction on measures to protect privileges, privacy, trade secrets and other confidentialinformation relating to the production of electronic documents and data.” Comment 9.a of the Sedona CanadaPrinciples suggests parties consider entering into an agreement to protect against inadvertent disclosure.Reasonable good faith efforts, which will vary according to the data set in each case, must still be employed todetect and prevent inadvertent disclosure. Comment 9.a suggests obtaining court approval of the agreement inadvance. Comment 9.c addresses the use of neutral court-appointed experts that help mediate or managediscovery to assist in eliminating privilege waiver concerns in certain cases and the use of agreements as tomodified “claw-back’ of inadvertently produced privilege documents.

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No waiver of or effect on other discovery rights and obligations

The purpose of the agreement confirmed in this letter is to agree on procedures for compliancewith the parties’ respective obligations with respect to documentary and oral discovery, andthereby reduce cost. The agreement is not intended to define all of the parties’ respectiveobligations with respect to the production of documents, electronic or otherwise, or to limit orreduce the discovery obligations otherwise imposed by the Rules of Civil Procedure unlessexpressly noted.

If I have misstated any aspect of our agreement regarding the matters set out above, kindly adviseme.Yours very truly,Greenberg and Griffin

Lisa J. SmithLJS/ra

4.1 CONFIRM INSTRUCTIONS TO MAKE OFFER

March 8, 2010


Dear Ms. Smith,


This is to confirm your instructions to make an Offer to Settle this proceeding on thefollowing terms:

1.

I will advise the other party of your settlement position and will contact you if I receive aresponse to your Offer to Settle.




4.2 SEND COPY OF OFFER FOR APPROVAL

March 8, 2010


Dear Ms. Smith,


Further to your instructions, I prepared the enclosed Offer to Settle. Please review theOffer to Settle carefully to ensure it is in accordance with your instructions.

Since an accepted Offer to Settle constitutes a complete and final settlement, you mustensure that the terms are satisfactory to you. I will not serve the Offer to Settle until I hear fromyou that the terms are satisfactory.

After I serve the Offer to Settle, it will remain open for acceptance until trial unless it isrevoked in writing. For this reason, you should keep the Offer to Settle on file and review it fromtime to time. If your settlement position changes, you should advise me and I will amend yourOffer to Settle as instructed by you.




4.3 SEND COPY WHICH WILL MAIL IN SEVEN DAYS

March 8, 2010


Dear Ms. Smith,


Further to your instructions, I prepared the enclosed Offer to Settle. Please review theOffer to Settle carefully to ensure it is in accordance with your instructions.

Since an accepted Offer to Settle constitutes a complete and final settlement, you mustensure that the terms are satisfactory to you. I plan to serve the Offer to Settle unless I hear fromyou within seven days that the terms are not satisfactory.

After I serve the Offer to Settle, it will remain open for acceptance until trial unless it isrevoked in writing. For this reason, you should keep the Offer to Settle on file and review it fromtime to time. If your settlement position changes, you should advise me and I will amend yourOffer to Settle as instructed by you.




5.1 ADVISE OF PRETRIAL DATE

March 8, 2010


Dear Ms. Smith,


I wish to report that the Trial Coordinator of the Superior Court of Justice has scheduled aPre-trial Conference for March 11, 2010 at the Superior Court of Justice. You are required toattend at the Pre-trial and should be in a position to provide settlement instructions.

At a Pre-trial Conference, a Judge of the Superior Court of Justice reads the Pre-trialConference Memorandum prepared by the lawyers for each of the parties. A Pre-trial ConferenceMemorandum contains a statement of the issues in the proceeding, a summary of the evidenceeach party intends to call at trial, and a brief discussion of the law. In addition, a Pre-trialConference Memorandum may contain relevant excerpts from the Transcripts of Examinationfor Discovery and copies of any Offer to Settle which have been exchanged. The Judge will thengive his or her opinion about the probable outcome of the case at trial and will comment onwhether any Offer to Settle are reasonable.

A Pre-trial Conference is often of assistance in arriving at a negotiated settlement but therecommendations of the Judge are not binding on the parties. After the Pre-trial, I will provideyou with a summary of the Judge’s recommendations and seek your instructions based uponthose recommendations. If a settlement does not result from the Pre-trial, your case will bescheduled for trial.




5.2 SEND PRETRIAL MEMORANDUM

March 8, 2010


Dear Ms. Smith,


Enclosed is a copy of the Pre-trial Conference Memorandum I prepared for the Pre-trialConference scheduled to be heard on March 11, 2010. The Pre-trial Conference Memorandum isfiled with the Court and provided to other counsel. I also enclose a copy of the Pre-trialConference Memorandum served on me by other counsel.




6.1 LETTER TO LAWYER CONSENT TO TRANSFER FILE TO SMALL CLAIMS

January 16, 2013 File Number: 02-12345




Dear

Re: Peter Griffin v Homer Simpson et al.Court File No.: 12-12345Our File No.: 02-12345

Further to my telephone conversation, enclosed please find a Consent regarding thetransfer of this file from Simplified Procedure to **Press F11 and insert (court name)** SmallClaims Court.

Please sign and return at your earliest opportunity.

Yours very truly,Greenberg and Griffin

Lisa J. SmithLJS/ra

6.2 LETTER TO COURT RE TRANSFER OF FILE TO SMALL CLAIMS

January 16, 2013 File Number: 8975.11

Ontario Superior Court of Justice393 University Avenue, 10th FloorToronto, Ontario M5G 1E6

Court File No.: 12-12345

Dear Mr. Smith,

Re: Peter Griffin v Homer Simpson et al.Court File No.: 12-12345Our File No.: 8975.11

Enclosed please find the following:

(a) Requisition to transfer file.

(b) Consent signed by all parties.

(c) Cheque for the sum of $**Press F11 and insert (amount)**.

Please have Court File No. 12-12345 transferred from Simplified Procedure to **Press F11and insert (court name)** Small Claims Court.

I thank you for your anticipated co-operation regarding this matter.


Lisa J. SmithLJS/ra

6.3 ADVISE OF PRE-TRIAL DATE


PERSONAL & CONFIDENTIAL

Peter Griffin1 Anywhere StreetToronto, ON M5C 1B4

Dear Mr. Griffin


I wish to report that the Trial Reporter of the Superior Court of Justice has scheduled aPre-trial Conference for January 16, 2013 at 10:00 am at the Court. You are required to attend atthe Pre-trial and should be in a position to provide settlement instructions.

At least five days before the Pre-trial Conference, each party is required to file thefollowing documents:

(a) a copy of the party’s Affidavit of Documents as well as copies of the documentsrelied on for the party’s claim or defence;

(b) a copy of any expert report(s);

(c) a two-page statement setting out the issues and the party’s position with respect tothem;

(d) a trial management checklist; and

(e) any other materials necessary for the Pre-trial Conference.

A Pre-trial Conference is often of assistance in arriving at a negotiated settlement but therecommendations of the Judge are not binding on the parties. If a settlement does not result fromthe Pre-trial, your case will be scheduled for trial. The Pre-trial Conference Judge will fix a datefor trial, subject to the direction of the Regional Senior Judge. The Judge hearing the Pre-trial isnot able to hear the trial.


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Alan GreenbergAG/raEncl.

6.4 EXPLAIN STAGES OF LAWSUIT




Dear Mr. Griffin,


We would like to take this opportunity to explain the various stages of a lawsuit and also tointroduce you to some of the terminology that is associated with a legal proceeding. Please keepthis letter on file and refer to it from time to time as your case proceeds.

THE PLEADINGS STAGE

A legal proceeding is started by a document called a Statement of Claim. Once theStatement of Claim is served, the other party has 30 days to deliver a Statement of Defence. ThePlaintiff will then have the option of responding to the Statement of Defence in a document calleda Reply. The other party could advance another claim by serving a document called a Statement ofDefence & Counterclaim or even add new parties to the legal proceeding with the Statement ofDefence & Counterclaim or with a Third Party Claim. The various documents exchanged at thebeginning of the legal proceedings are known as Pleadings since each party is setting out (orpleading) his or her case in the court documents. It is difficult at the beginning of a legalproceeding to predict how the other party will respond to the Pleadings.

THE DISCOVERY STAGE

Once Pleadings have been exchanged, the case moves to the discovery stage. The first partof the discovery stage involves each party preparing and serving an Affidavit of Documents whichlists all of the documents in the possession, control or power of the party which are relevant to theissues in the legal proceeding. The Affidavit of Documents shall include a list of the names andaddresses of persons who might reasonably be expected to have knowledge of matters in issue inthis action, unless the Court orders otherwise.

The second part of the discovery stage is called Examination for Discovery. This consistsof each party appearing before a Court Reporter and answering questions under oath. This processis limited to a maximum of two hours regardless of the number of parties or other persons to beexamined.

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MOTIONS

A Motion is a hearing before a Judge or Master for an Order dealing with some matter inthe proceeding. The Judge makes his or her decision based on affidavit evidence as opposed towitnesses appearing in court to give oral evidence. In some cases, each party is cross-examined (orquestioned under oath) regarding the evidence in his or her affidavit before the Motion is argued.There are many different motions which can be brought during the course of a legal proceedingand this will depend upon how this case develops and your instructions to us.

THE PRE-TRIAL STAGE

Within 180 days following the date the Defendant has filed their Defence, the Plaintiffmust set the action down for trial by filing a Notice of Readiness for Pre-Trial with the Court. TheCourt will then set a Pre-trial date. At the Pre-trial Conference, the presiding Judge or master shallfix the trial date if the lawyers and parties agree on same. If the parties do not agree on the mode oftrial, the presiding Judge or master will determine the mode of trial that is appropriate.

A defended action is placed on the appropriate trial list immediately after the Pre-trialConference and the party who set the action down must serve the Trial Record at least 10 daysbefore the date fixed for trial. The Trial Record contains all the documents required for the Judgeto review prior to summary trial.

SUMMARY TRIAL

Under the Simplified Procedure there is an option for a summary trial which is a trial byaffidavit with cross-examinations and re-examinations on the affidavits before the Judge and stricttime limits on all phases of the trial. At this stage in the litigation, cross-examination may occur.This consists of each party appearing before the trial Judge and answering questions under oath.The trial Judge may extend any of the time lines, and shall grant Judgment after the conclusion ofthe trial.

ENFORCEMENT OF JUDGMENT

Sometimes the legal proceeding does not end with the Judgment. The unsuccessful partymay fail to satisfy the Judgment. In such a case, steps will have to be taken to enforce theJudgment. We will discuss these additional steps if the need arises.

CONCLUSION

We trust that this letter explains to you the stages involved in a civil legal proceeding. Aswe proceed, we will be contacting you for instructions and providing you with further information.We will be sending you court documents from time to time and you may want to keep thesedocuments in a binder or file so they will be available for your review.

If you have any questions, please do not hesitate to contact us.

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7.1 ADVISE TRIAL RECORD SERVED BY US

March 8, 2010


Dear Ms. Smith,


Please be advised that I recently prepared and served a Trial Record (a Trial Record is abooklet, bound and tabbed, containing the pleadings and a solicitor's certificate). The legal termfor the status of your case at this time is that it has been “set down for trial”.

The Trial Coordinator of the Superior Court of Justice will place your case on the trial listsixty (60) days after the Trial Record was served. When this occurs, your case will have been“listed for trial”. The consequences of your case having been listed for trial are as follows:

(a) each party shall be deemed to be ready for trial;

(b) a Pre-trial Conference shall be scheduled;

(c) a trial shall proceed after the Pre-trial Conference has been held, unless a Judgeorders otherwise.

A Pre-trial Conference is simply a meeting with the lawyers for each party and a Judge todiscuss the possibility of settling the case. If your case does not settle before or at the Pre-trialConference, it will proceed to trial.




7.2 ADVISE TRIAL RECORD SERVED BY OTHER LAWYER

March 8, 2010


Dear Ms. Smith,


I was recently served with a Trial Record (a Trial Record is a booklet, bound and tabbed,containing the pleadings and a solicitor's certificate). The legal term for the status of your case atthis time is that it has been "set down for trial".

The Trial Coordinator of the Superior Court of Justice will place your case on the trial listsixty (60) days after the Trial Record was served on me. When this occurs, your case will havebeen "listed for trial". The consequences of your case having been listed for trial are as follows:

(a) each party shall be deemed to be ready for trial;

(b) a Pre-trial Conference shall be scheduled;

(c) a trial shall proceed after the Pre-trial Conference has been held, unless a Judgeorders otherwise.

A Pre-trial Conference is simply a meeting with the lawyers for each party and a Judge todiscuss the possibility of settling the case. If your case does not settle before or at the Pre-trialConference, it will proceed to trial.




7.3 ADVISE OF ASSIGNMENT OF COURT DATE

March 8, 2010


Dear Ms. Smith,


Please be advised that the Trial Coordinator of the Superior Court of Justice has placedyour case on the Assignment Court list for Friday, March 19, 2010. At Assignment Court apresiding Judge reviews the status of your case and hears submissions from the lawyers involvedabout whether the case is ready to proceed to trial. The Judge will then decide whether to placeyour case on the next scheduled court sittings or the Judge may traverse your case to a later dateif he or she believes there is a legitimate reason that your case should not proceed to trial duringthe next sittings.

Once your case is scheduled for court sittings, you should be ready to proceed to trial atany time during the sittings. I may only be given short notice before a case is called for trial andyou should be aware of this fact at an early stage. If there are any dates when it would beimpossible for you to attend trial, you should advise me now so that I can inform the Judge andask that your case not proceed on those dates.

Your attendance at assignment court is not necessary and I will be reporting to you afterthe Assignment Court hearing. In the meantime, if you have any questions, please do not hesitateto contact me.



7.4 SUMMONS TO WITNESS




Dear Mr. Griffin


Please be advised that I represent Peter Griffin, with respect to a**Press F11 to insert (information)** claim.

My client has advised that you are willing to testify on behalf of him at the trial scheduledto commence on **Press F11 to insert (date)** in **Press F11 to insert (City/Town)**. I attach aSummons to Witness which is served upon you pursuant to the Rules of Civil Procedure, togetherwith conduct money in the amount of $**Press F11 to insert (amount)**.

I would ask you to contact my assistant, **Press F11 to insert (name)**, as soon aspossible to provide your contact information for the time period of **Press F11 to insert (date)**to **Press F11 to insert (date)** and to arrange a convenient time for me to speak with you prior totrial. I expect you will be called as a witness sometime during the week of**Press F11 to insert (date)**, at a time to be determined.




8.1 SEND CLIENT DRAFT ORDER – DRAFTED BY US

March 8, 2010


Dear Ms. Smith,


I am enclosing the draft Order arising from the decision of Justice Justice Brown made onthe March 8, 2010. As required by the Rules of Civil Procedure, I have forwarded a copy of thedraft Order to the other lawyer for approval.

Upon receipt of the approved Order, I will obtain an issued and entered Order from theLocal Registrar of the Superior Court of Justice. I will, of course, provide you with a copy of theissued and entered Order as soon as I receive it.




8.2 SEND CLIENT DRAFT – DRAFTED BY OTHER LAWYER

March 8, 2010


Dear Ms. Smith,


Enclosed is a copy of the draft Order arising from the decision of Justice Brown made onMarch 8, 2010. The other lawyer must now take the necessary steps to obtain a formal issued andentered Order from the Local Registrar of the Superior Court of Justice and provide me with acopy. I will of course provide you with a copy of the issued and entered Order as soon as Ireceive it.




8.3 SEND CLIENT COPY OF ISSUED ORDER

March 8, 2010


Dear Ms. Smith,


I am pleased to enclose a copy of the issued and entered Order arising from the decisionof Justice Brown made on March 8, 2010.

If you have any questions concerning the content of the Order, please do not hesitate tocontact me.



8.4 ASK OTHER LAWYER TO APPROVE DRAFT ORDER

March 8, 2010

SENT BY COURIER


Dear Mr. Michaels,


I am enclosing the draft Order arising from the decision of Justice Brown made on the 8thday of March, 2010. I would appreciate your approving the draft Order as to form and contentand returning the approved Order to me. I will then obtain the issued and entered Order andprovide you with a copy.



John SmithJS/gm

8.5 APPROVE ORDER DRAFTED BY OTHER LAWYER

March 8, 2010

SENT BY COURIER


Dear Mr. Michaels,


Enclosed is an approved copy of the draft Order arising from the decision of Justice Brownmade on March 8, 2010. I trust that you will provide me with a copy of the issued and enteredOrder as soon as it is available.



John SmithJS/gm

8.6 SEND OTHER LAWYER COPY OF ISSUED ORDER

March 8, 2010

SENT BY COURIER


Dear Mr. Michaels,


Enclosed is a copy of the issued and entered Order arising from the decision of JusticeBrown made on March 8, 2010.



John SmithJS/gm

8.7 ISSUE AND ENTER ORDER




Dear Ms. Smith,


Enclosed please find three copies of an Order approved as to form and content, togetherwith my firm cheque for $**Press F11 to insert (amount)**, which I would ask be issued andentered. Kindly forward a copy of the issued and entered Order to my office in the enclosedself-addressed stamped envelope.

Thank you for your assistance.


Lisa J. SmithLJS/ra

9.1 REQUEST CERT OF APTMT FROM COURT – WITH A WILL

March 8, 2010

Ontario Superior Court of Justice393 University Avenue, 10th FloorToronto ON M5G 1E6

Court File Number: CV-09-98765

Dear Mr. Andrews,


As the lawyer for the estate trustee(s) of the Estate, I am enclosing herewith thefollowing:

1. Application for Certificate of Appointment of Estate Trustee with A Will;2. Original Last Will and Testament and a photocopy;3. Affidavit of Execution of Will or Codicil;4. Affidavit of Service of Notice with attached Notice of Application;5. Certificate of Appointment of Estate Trustee with a Will, in duplicate;6. A cheque payable to the Minister of Finance in the amount of $**Press F11 to insert(amount)**

I would be pleased to receive the Certificate of Appointment of Estate Trustee with aWill at your earliest convenience and thank you for your attention to this matter. If you have anyquestions regarding this matter, kindly contact **Press F11 to insert (name)**.


John SmithJS/gm

9.2 REQUEST CERT OF APTM FROM COURT – WITHOUT A WILL

March 8, 2010

Ontario Superior Court of Justice393 University Avenue, 10th FloorToronto ON M5G 1E6

Court File Number: CV-09-98765

Dear Mr Andrews,


As the lawyer for the estate trustee(s) of the above-noted Estate, I am enclosing herewiththe following:

1. Application for Certificate of Appointment of Estate Trustee without A Will;2. Affidavit of the Applicant;3. Order dispensing with bond;4. Affidavit of Service of Notice with attached Notice of Application;5. Renunciations and Consent of the beneficiaries;5. Certificate of Appointment of Estate Trustee without a Will, in duplicate;6. A cheque payable to the Minister of Finance in the amount of $**Press F11 to insert(amount)**

I would be pleased to receive the Certificate of Appointment of Estate Trustee without aWill at your earliest convenience and thank you for your attention to this matter. If you haveany questions regarding this matter, kindly contact **Press F11 to insert (name)**.


John SmithJS/gm

9.3 RESIDUAL BENEFICIARY INITIAL LETTER – WITH A WILL

March 8, 2010


Dear Ms. Smith,


Please be advised that I represent the person named executor/estate trustee in the LastWill and Testament of **Press F11 to insert (name)** and I propose to apply to the OntarioSuperior Court of Justice for a Certificate of Appointment of Estate Trustee with a Will.

Please find enclosed a Notice of Application for a Certificate of Appointment of EstateTrustee with a Will, together with a copy of the Last Will and Testament and Codicils whererelevant to the Will, all of which are served upon you by regular lettermail, pursuant to the Rulesof Civil Procedure.

Once a Certificate of Appointment has been granted, and the estate trustees havecompleted the initial aspects of the administration of the estate, we will be in touch with you.

Thank you for your attention to this matter. Should you have any questions or commentswhatsoever, please do not hesitate to contact my office.



9.4 BENEFICIARY INITIAL LETTER – WITHOUT A WILL

March 8, 2010


Dear Ms. Smith,


Please be advised that I represent the persons applying to the Ontario Superior Court ofJustice for a Certificate of Appointment of Estate Trustee without a Will.

Please find enclosed a Notice of Application for a Certificate of Appointment of EstateTrustee without a Will, together with a Consent to Applicant’s Appointment of Estate Trusteewithout a Will and Renunciation of Prior Right to a Certificate of Appointment of Estate Trusteewithout a Will, all of which are served upon you by regular lettermail, pursuant to the Rules ofCivil of Procedure.

Thank you for your attention to this matter. Should you have any questions or commentswhatsoever, please do not hesitate to contact my office.



10.1 ADVISE OF OPTIONS FOR ENFORCEMENT

March 8, 2010


Dear Ms. Smith,


As you know, I obtained Judgment in this matter. I enclose for your files a copy of theissued and entered Judgment. Collecting on a Judgment is sometimes a simple and, at othertimes, a complex procedure. You have many options to effect collection of your Judgment, someof which are as follows:

1. Send demand letters;

2. Direct the Sheriff to seize personal property of the debtor;

3. Conduct a Judgment Debtor Examination of the debtor or of third parties whomay have knowledge of the debtor's financial circumstances;

4. Arrange for seizure of bank accounts;

5. Arrange for Garnishment of wages or other sources of income;

6. Register a Writ of Seizure and Sale and arrange for sale of land after 6 monthsfrom the date of filing of the Writ.

After you have had an opportunity to consider these options, please contact me so that Ican discuss these options further and so that you can provide me with your instructions. Needlessto say, the more information you can provide me about the debtor's financial circumstances thebetter and I would appreciate receiving any such information from you at your earliestconvenience.



Michael BrownMB/gm

10.2 ADVISE NOTED IN DEFAULT

March 8, 2010


Dear Ms. Smith,


I wish to report that I noted Robert Jones in default because *** within the time requiredby the Rules of Civil Procedure. I will now take the necessary steps to obtain Default Judgmentand will report to you further once Default Judgment has been obtained.




10.3 ADVISE OBTAINED DEFAULT JUDGMENT

March 8, 2010


Dear Ms. Smith,


I am pleased to report that I obtained Default Judgment against the Defendant andenclose a copy of the Default Judgment. Please contact me with your instructions regardingenforcement of the Default Judgment.



Andrew ShaughnessyAS/kdEncl.

10.4 ADVISE OF SERVICE OF GARNISHMENT

March 8, 2010


Dear Ms. Smith,


I prepared, issued and served the enclosed Notice of Garnishment. The Garnishee isrequired by law to remit all funds subject to the Garnishment to the Sheriff. The Sheriff musthold the funds for thirty (30) days and will then distribute the funds on a "pro rata basis" to allpeople who have a Writ of Execution filed against the debtor. Upon receipt of any funds from theSheriff, I will contact you.




10.5 ADVISE WRIT FILED

March 8, 2010


Dear Ms. Smith,


I am pleased to report that on March 5, 2010 I filed a Writ of Seizure and Sale with theSheriff of the County of Brant. The Writ will bind any lands owned by the debtor for a period ofsix years from the date of filing.

Please note two important points. First, the Writ is only effective in the region in which itwas filed. If you are aware of any lands owned by the debtor in other regions, please advise and Iwill arrange for another Writ to be filed. Second, the Writ will remain in force for six years, afterwhich it will automatically expire. The Writ may be renewed by filing a document called aRequest to Renew. However, you will have to contact me about two months before the expirydate and instruct me to renew the Writ since I cannot keep your file active for another six years.




11.1 ADVISING MATTER SETTLED




Dear Mr. Smith,


I act on behalf of the Plaintiff , Peter Griffin, in the above noted matter. The trial of thismatter is scheduled to proceed on **Press F11 to insert (date)**.

I confirm my telephone conversation with you advising that this matter has settled. I am inthe process of preparing a Dismissal Order and shall forward same shortly.

Thank you for your assistance and co-operation throughout in this matter.


Lisa J. SmithLJS/ra

11.2 ADVISING MATTER SETTLED AND INCLUDING ORDER




Dear Mr. Smith,


I am pleased to advise that the above-noted action has settled.

I enclose herein two original Consents and three copies of the draft Order to dismiss thisaction on a without costs basis. I would ask that you kindly have the Orders signed, issued andentered and returned to the writer’s attention in the self-addressed, stamped envelope provided. Ialso enclose herein my firm’s cheque in the amount of $**Press F11 to insert (amount)**representing your fee for same.

Should you have any questions, please do not hesitate to contact the writer at yourconvenience. Thank you kindly for your continued assistance throughout this matter and I lookforward to hearing from you.


Lisa J. SmithLJS/ra

12.1 CONFIRM NO INSTRUCTIONS

March 8, 2010


Dear Ms. Smith,


We note that you have not contacted us since the date of your initial interview onWednesday, March 3, 2010. Unless you contact us within two weeks from the date of this letter,we will assume that you have resolved this matter and do not want to retain our services.

We trust this is satisfactory.



12.2 EXPLAIN STAGES OF LAWSUIT

March 8, 2010


Dear Ms. Smith,


We would like to take this opportunity to explain the various stages of a lawsuit and alsoto introduce you to some of the terminology that is associated with a legal proceeding. Pleasekeep this letter on file and refer to it from time to time as your case proceeds.

THE PLEADINGS STAGE

A legal proceeding is started by a document called a Statement of Claim. Once theStatement of Claim is served, the other party has thirty days to deliver a Statement of Defence.You then have the option of responding to the Statement of Defence in a document called aReply. The other party could advance a claim against you by serving a document called aStatement of Defence and Counterclaim or even add new parties to the legal proceeding with theStatement of Defence and Counterclaim or with a Third Party Claim. The various documentsexchanged at the beginning of the legal proceedings are known as Pleadings since each party issetting out (or pleading) his or her case in the court documents. It is difficult at the beginning of alegal proceeding to predict what approach the other party will take in the Pleadings.

THE DISCOVERY STAGE

Once Pleadings have been exchanged, the case moves to the discovery stage. The firstpart of the discovery stage involves each party preparing and serving an Affidavit of Documentswhich lists all of the documents in the possession, control or power of the party which arerelevant to the issues in the legal proceeding. Since we will have to prepare your Affidavit ofDocuments, you should provide us with all of the documents in your possession, control orpower which are relevant to the matters in issue in this legal proceeding and which you have notalready provided to us. If any of the documents are privileged or confidential, you will not haveto produce the documents but they will be listed on a separate schedule. The second part of thediscovery stage is called Examinations for Discovery. This consists of each party appearingbefore a court reporter and answering questions under oath.

MOTIONS

A Motion is a hearing before a Judge for an Order dealing with some matter in theproceeding. The Judge makes his or her decision based on affidavit evidence as opposed towitnesses appearing in court to give oral evidence. In some cases, each party is cross-examined(or questioned under oath) regarding the evidence in his or her affidavit before the Motion is

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argued. There are many different Motions which can be brought during the course of a legalproceeding and this will depend upon how this case develops and your instructions to us. Insome cases it is worthwhile to bring a Motion and we will be seeking your instructions if webelieve a Motion is necessary.

THE PRETRIAL STAGE

After the discovery stage is complete, we prepare and serve a Trial Record which has theeffect of placing your case on a list of cases for trial. Once the matter is on the trial list, it canthen take a number of months to get reached for trial depending on the number of cases alreadyon the list. Before the case gets called for trial, the Trial Coordinator of the Superior Court ofJustice will schedule a Pre-trial Conference. The Pre-trial Conference is a meeting with a Judgeand the lawyers during which the prospects of settlement are discussed.

The Judge will read Pre-trial Conference Memorandum prepared by each of the lawyersand review any Offers to Settle. After reviewing this material, the Judge will provide his or heropinion on the likely outcome of the case if the matter proceeds to trial and will also comment onwhether the Offers to Settle are reasonable. In simple terms, a Pre-trial Conference is anopportunity to get a legal opinion or legal advice about your case (the Rules of Civil Procedureprovide that the Judge who hears the Pre-trial Conference cannot preside over the trial).

TRIAL

If the parties are unable to settle the legal proceeding then a trial is held and the trialJudge decides the issues in the legal proceeding after each party calls evidence. The trial stage istypically one of the more expensive stages since we have to spend a significant amount of timepreparing for trial and must focus our efforts fully on your case when it is called for trial. Oncethe trial is complete a formal Judgment is prepared and the Judge decides which party, if any,will pay costs.

Prior to your case being reached for trial, we will want to meet with you and anywitnesses to review the evidence and prepare for trial. At this time, you should start preparing alist of potential witnesses along with a summary of their expected evidence and the addressesand telephone numbers where we can contact the witnesses. You should be aware that we willhave to spend a number of hours reviewing documents, preparing questions, and reviewing therelevant law even before the case is reached for trial.


Sometimes the legal proceeding does not end with the Judgment. The unsuccessful partymay fail to satisfy the Judgment. In such a case, we must take steps to enforce the Judgment. Wewill discuss these additional steps with you if the need arises.

CONCLUSION

We trust that this letter explains to you the stages involved in a civil legal proceeding. Aswe proceed, we will be contacting you for instructions and providing you with further

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information. We will be sending you court documents from time to time and you may want tokeep these documents in a binder of file so they will be available for your review.




12.3 EXPLAIN MANDATORY MEDIATION

March 8, 2010


Dear Ms. Smith,


We are writing to inform you that your case has been selected for mandatory mediationby the court and we wish to explain to you, in general terms, what mediation is and what toexpect at the mediation.

We would emphasize that we did not seek to mediate this matter; rather, pursuant to aprogram operating in both Toronto and Ottawa, we have been required by the court to seekmediation before a court approved mediator or a mediator jointly consented to by the parties.

Mandatory mediation is an attempt to settle a case early in the proceeding before therehas been substantial legal time and expense incurred. The mediator has no legal authority andcannot force either party to take any action, and it is certainly possible for either party to refuseto take any steps towards settlement. Nevertheless, if the parties can arrive at a viable settlementbefore going further with the lawsuit, you will likely be in a much better position than byfollowing the lengthy and uncertain course of litigation.

The mediation usually commences with a meeting between all parties and the mediator ina conference room. The mediator begins by saying that the mediation process is different fromthe court process in that it will focus more on the real issues between the parties as opposed tolegal entitlements. The mediator usually points out, as is correct, that anything said during themediation cannot be used subsequently in the lawsuit if the case does not settle. Thus, if youwere to make a concession during the mediation, that concession could not be held against youlater in the lawsuit if settlement is not achieved.

The mediator usually then asks the defendant, either through counsel or directly, toexplain what happened and what they want to get out of the litigation. During this time, theplaintiff is not allowed to interrupt and must listen to the defendant in full. The defendant is freeto say virtually anything subject only to the mediator cutting the defendant short because time isrunning out or the defendant is speaking of personal matters irrelevant to the lawsuit. Once thedefendant has had a chance to speak, the plaintiff is given the same chance at which time themediator usually tries to set out what the mediator thinks the issues between the parties are.

Once the issues are identified, the mediator usually breaks the parties into separateconference rooms and then engages in “shuttle diplomacy” between the rooms seeking to get anexchange of offers and some movement towards settlement. It should be noted that the mediatorwill always emphasize the down sides of your case in hopes of moving you towards settlement;

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that said, the mediator should be listened to and reasonable settlement should be considered if atall consistent with your needs in the lawsuit.

In terms of preparation, we will be preparing a Mediation Memorandum that outlines tothe mediator, in general terms, the legal and factual issues in the lawsuit. Before coming to themediation, you should think about what your bottom line requirements would be for anysettlement otherwise a sort of “little by little” method of negotiating may tend to erode settlementpositions beyond a reasonable outcome.

We would like to meet with you a week or so before the mediation to prepare for themediation. Upon receiving this letter, please contact our office so that we can make arrangementsfor our meeting. We look forward to hearing from you.



12.4 EXPLAIN STAGES OF LAWSUIT – SIMPLIFIED PROCEDURE

March 8, 2010


Dear Ms. Smith,


We would like to take this opportunity to explain the various stages of a lawsuit and alsoto introduce you to some of the terminology that is associated with a legal proceeding. Pleasekeep this letter on file and refer to it from time to time as your case proceeds.

THE PLEADINGS STAGE

A legal proceeding is started by a document called a Statement of Claim. Once theStatement of Claim is served, the other party has 30 days to deliver a Statement of Defence. ThePlaintiff will then have the option of responding to the Statement of Defence in a documentcalled a Reply. The other party could advance another claim by serving a document called aStatement of Defence and Counterclaim or even add new parties to the legal proceeding with theStatement of Defence and Counterclaim or with a Third Party Claim. The various documentsexchanged at the beginning of the legal proceedings are known as Pleadings since each party issetting out (or pleading) his or her case in the court documents. It is difficult at the beginning ofa legal proceeding to predict how the other party will respond to the Pleadings.

THE DISCOVERY STAGE

Once Pleadings have been exchanged, the case moves to the discovery stage. The firstpart of the discovery stage involves each party preparing and serving an Affidavit of Documentswhich lists all of the documents in the possession, control or power of the party which arerelevant to the issues in the legal proceeding. The Affidavit of Documents shall include a list ofthe names and addresses of persons who might reasonably be expected to have knowledge ofmatters in issue in this action, unless the Court orders otherwise.

The second part of the discovery stage is called Examinations for Discovery. Thisconsists of each party appearing before a Court Reporter and answering questions under oath.This process is limited to a maximum of two hours regardless of the number of parties or otherpersons to be examined.

MOTIONS

A Motion is a hearing before a Judge or Master for an Order dealing with some matter inthe proceeding. The Judge makes his or her decision based on affidavit evidence as opposed towitnesses appearing in court to give oral evidence. In some cases, each party is cross-examined

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(or questioned under oath) regarding the evidence in his or her affidavit before the Motion isargued. There are many different motions which can be brought during the course of a legalproceeding and this will depend upon how this case develops and your instructions to us.

THE PRE-TRIAL STAGE

Within 180 days following the date the Defendant has filed their Defence, the Plaintiffmust set the action down for trial by filing a Notice of Readiness for Pre-Trial with the Court.The Court will then set a Pre-trial date. At the Pre-trial Conference, the presiding Judge ormaster shall fix the trial date if the lawyers and parties agree on same. If the parties do not agreeon the mode of trial, the presiding Judge or master will determine the mode of trial that isappropriate.

A defended action is placed on the appropriate trial list immediately after the Pre-trialConference and the party who set the action down must serve the Trial Record at least 10 daysbefore the date fixed for trial. The Trial Record contains all the documents required for theJudge to review prior to summary trial.

SUMMARY TRIAL

Under the Simplified Procedure there is an option for a summary trial which is a trial byaffidavit with cross-examinations and re-examinations on the affidavits before the Judge andstrict time limits on all phases of the trial. At this stage in the litigation, cross-examination mayoccur. This consists of each party appearing before the trial Judge and answering questionsunder oath. The trial Judge may extend any of the time lines, and shall grant Judgment after theconclusion of the trial.


Sometimes the legal proceeding does not end with the Judgment. The unsuccessful partymay fail to satisfy the Judgment. In such a case, steps will have to be taken to enforce theJudgment. We will discuss these additional steps if the need arises.

CONCLUSION

We trust that this letter explains to you the stages involved in a civil legal proceeding. Aswe proceed, we will be contacting you for instructions and providing you with furtherinformation. We will be sending you court documents from time to time and you may want tokeep these documents in a binder or file so they will be available for your review.


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12.5 ENGAGEMENT – RETAINER LETTER




Dear Mr. Griffin,


Thank you for retaining Greenberg and Griffin, to represent you with respect to the matteror matters set out below. We trust that you will find us of assistance.

This engagement letter sets out the terms of our retainer. We invite you to review the itemsset out below and to let us know should you have any questions or concerns. If the terms set outare satisfactory, we request that you execute the enclosed copy of this letter where provided for andreturn it to us together with the initial monetary retainer listed below.

Subject to your execution and return of the duplicate of this letter, together with the initialmonetary retainer and confirmation of identity as set out below, this will confirm that you haveretained us to act on your behalf with respect to the following matter or matters:

**Press F11 to insert (description)**

This engagement letter authorizes us, subject to your instructions, to initiate and completesuch negotiations, proceedings and actions as we may consider necessary, expedient and proper inorder to secure as favourable a result as may be obtained on your behalf, having regard to all thecircumstances and facts during the course of the said negotiations, proceedings and actions. Itfurther authorizes us to retain on your behalf, subject to your instructions, other professionalassistance (inclusive of other legal counsel, accountants, appraisers, valuators and such otherprofessionals as may be advisable and appropriate) to further the above-noted matter or matters if,in our opinion, it is necessary or advisable to do so.

The charges that you will incur in the provision of our services are comprised of threeitems. First: legal fees, being the fees charged by the lawyers, students-at-law, paralegals and lawclerks that work on your file; these are normally charged at a fixed hourly rate or as may otherwisebe agreed upon as between you and us. Second: disbursements, being charges incurred on yourbehalf, such as charges for photocopying, postage, transcripts etc. Third: Harmonized Sales Tax,or HST, payable on fees and disbursements (with the exception of court filing fees and other courtfees, which are not subject to HST). The above-noted charges are set out in the attached Schedule“A”. They are subject to change from time to time. Rest assured that, at all times, we will strive to

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provide you with the most cost-effective service. As a term of this engagement letter, you agree topay such charges as set out below.

We will render to you statements of account and trust statements from time to time, aswork is performed in relation to your file. Our accounts are due when rendered.

Our initial monetary retainer is $**Press F11 to insert (amount)**, payable to“**Press F11 to insert (name)**”, by way of cash, cheque, money draft or credit card. We are ableto process such payment by way of your **Press F11 to insert (credit card account)** credit cardaccount. A blank credit card authorization form is attached, for your convenience. This sum willbe deposited into our trust account and drawn upon as work progresses and statements of accountare rendered to you in respect of such work. You agree to provide such payment together with theexecuted duplicate of this engagement letter.

As the initial monetary retainer drops below the sum of $**Press F11 to insert (amount)**, as a term of this engagement letter, you agree to replenish same with the sum of$**Press F11 to insert (amount)**, or such greater sum as we may request, which sum may varydepending on the nature of the upcoming work to be performed (for example, examinations fordiscovery, motions or trial). These further monetary retainers will be further replenished as they,in turn, are depleted and drop below the sum of $**Press F11 to insert (amount)**. All suchreplenishments must take place within ten (10) days of our request for same.

In the event that we are being retained by more than one party, this engagement letter is tobe executed by all such parties and all such parties will be responsible for all of our charges, jointlyand severally.

In the event that this engagement letter is being executed by one or more individualpersons, we will need to obtain two original pieces of valid photo identification for each personsigning prior to confirming our retainer. The preferred type of identification is a valid driver’slicense or valid passport. The requirement to obtain and retain a copy of client identification isimposed upon us by the Law Society of Upper Canada (“LSUC”).

In the event that this engagement letter is being executed on behalf of one or morecorporations, we will conduct corporate searches to ascertain that such corporation or corporationsare subsisting prior to confirming our retainer. This requirement is imposed upon us by the LSUC.

Any revision to the terms set out in this engagement letter must be made in writing.

We look forward to being of service to you.



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SCHEDULE “A”

(FEES AND DISBURSEMENTS)

(Effective Date: **Press F11 to insert (date)**)

FEES1:

Senior Counsel(called to the bar for 15 years or more): $**(amount)** per hour

Intermediate Counsel(called to the bar for more than 5 but less than 15 years): $**(amount)** per hour

Junior Counsel (called to the bar for 5 years or less): $**(amount)** per hour

Students-at-Law: $**(amount)** per hour

Paralegals: $**(amount)** per hour

Law Clerks: $**(amount)** per hour

DISBURSEMENTS2:

LSUC Levy Surcharge (one time charge, non-taxable): $**(amount)** per hour

File Retention Fee (one time charge): $**(amount)** per hour

Photocopies: $**(amount)** per page

Faxes (outgoing and incoming): $**(amount)** per page

Tabs and bindings: $**(amount)** each

Messengers: $**(amount)** at cost

Transcripts: $**(amount)** at cost

Court Fees (non-taxable): $**(amount)** at cost3

1 All fees are subject to HST.2 Except where noted, all disbursements are subject to HST.3 A list of court fees may be obtained on the following Government of Ontario website:

http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_920293_e.htm

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CREDIT CARD AUTHORIZATION FORM

(Must be completed in full and the original returned together with the duplicate of theengagement letter as executed by you.)

TO: Greenberg and Griffin

FROM: Peter Griffin

RE: Peter Griffin v Homer Simpson et al.

OUR FILE #: PM Test for Quarterly

I authorize Greenberg and Griffin to charge my credit card account in the amount of$**Press F11 to insert (amount)**.

I further authorize Greenberg and Griffin to charge my credit card account in suchamount(s) as I may authorize in writing from time to time.

Credit Card: MasterCard Visa American Express

Name of Card Holder (please print):

Credit Card Number: Exp. ___/___ (month/year)

Card Security Number:(For Visa and MasterCard cards, the Card Security Number is a 3-digit number located on the back of the card, usually next to thesignature strip. For American Express cards, the Card Security Number is a 4-digit number located on the front of the card.)

Billing Address of Cardholder:

Signature of Cardholder:

12.6 ADVISE LAWYER IS ON HOLIDAYS

March 8, 2010

WITHOUT PREJUDICE

SENT BY COURIER


Dear Mr. Michaels,


I wish to inform you that Donald C. Stien will be away from the office until April 1,2010. Your letter dated March 1, 2010 will be brought to his immediate attention upon his return.



Peter WilcoxPW/kd

12.7 FOLLOW UP LETTER





Dear Mr. Jones,


I have yet to hear from you with respect to my letter dated **Press F11 to insert (date)**, acopy of which is attached for your reference. I ask that you immediately forward the**Press F11 to insert (information)**.



Lisa J. SmithLJS/ra

13.1.1 REQUEST ACCIDENTAL BENEFIT FILE

March 8, 2010


Dear Ms. Smith,

Re: Suzie Smith ats Robert JonesOur File No.: 1234-001Policy No.: 114Claim No.: 425876Our File No: 1234-001

Please find enclosed an Authorization signed by my client. I would ask you to forward tome a copy of your Accident Benefits file with respect to the client, including:

(1) all correspondence between the insurer or its agents and my client;

(2) all correspondence between the insurer or its agents and all doctors, hospitals and otherhealth practitioners;

(3) any other correspondence between the insurer or its agents and other non-parties;

(4) proof of all accident benefit payments made to my client;

(5) all file notes and adjuster notes and inter-office memoranda;

(6) particulars of any surveillance or other investigation performed;

(7) all applications for accident benefits made by my client;

(8) all explanations of assessment by insurance company forms;

(9) all medical reports, hospital records, and clinical notes and records from healthpractitioners;

(10) a breakdown of the accident benefits payments made to date; and

(11) all other documentation relevant to my client's accident benefits claim.

I would also ask for a copy of the property damage documentation.

I look forward to receipt of the above-mentioned materials at your earliest convenience.

-2-



13.1.2 INFORMING CLIENT OF DEFENCE MEDICAL




Dear Mr. Griffin,


Enclosed please find correspondence from counsel for the defence, advising that they havescheduled a defence medical assessment with **Press F11 to insert (name)**, the details of whichare as follows:

• **Press F11 to insert (description)**

I ask that you kindly contact my office to confirm whether you are available to attend theabove noted appointment.




13.2.1 MOVING FORWARD WITH LITIGATION

March 8, 2010


Dear Ms. Smith,


Further to our consultation on February 19, 2010, I have attempted to contact you todetermine whether you are interested in proceeding with the above-noted matter. I have notreceived a response from you in this regard.

Please call to advise within seven days of the date of this letter if you intend to proceedwith this litigation. If I do not hear from you, I will close my file without further notice to you.



13.2.2 ATTENDANCE AT ASSIGNMENT COURT

March 8, 2010

SENT BY COURIER


SENT BY COURIER


Dear Mr. Michaels,


As you are aware, Assignment Court is scheduled for *** at *** in the above-noted matter.In this regard, please find attached the Report of Counsel/Party which the Toronto (393 UniversityAvenue) Court requires be completed and filed three days prior to Assignment Court.Accordingly, I would ask you to complete numbers *** and return same to me by ***, failingwhich, I will complete the form on your behalf to the best of my knowledge.


Peter WilcoxPW/kd

13.2.3 REQUESTING SIGNATURE ON AUTHORIZATION

March 8, 2010


Dear Ms. Smith,


Enclosed are Authorizations which I would ask you to sign and return in the self-addressed, stamped envelope in order that I may obtain information from the various institutionswith respect to this matter. Please insert your OHIP and Social Insurance Number whereindicated. As well, kindly provide me with your date of birth.

Please DO NOT DATE OR WITNESS these forms as they will be completed as required.

If you have any questions, please do not hesitate to contact me and we look forward toreceipt of same.



13.2.4 SUMMONS TO WITNESS LETTER



Peter Griffin1 Anywhere St.Toronto, ON M5C 1B4

Dear Mr. Griffin


Please be advised that I represent Peter Griffin, with respect to a**Press F11 to insert (information)** claim.

My client has advised that you are willing to testify on behalf of him at the trial scheduledto commence on **Press F11 to insert (date)** in **Press F11 to insert (City/Town)**. I attach aSummons to Witness which is served upon you pursuant to the Rules of Civil Procedure, togetherwith conduct money in the amount of $**Press F11 to insert (amount)**.

I would ask you to contact my assistant, **Press F11 to insert (name)**, as soon aspossible to provide your contact information for the time period of **Press F11 to insert (date)**to **Press F11 to insert (date)** and to arrange a convenient time for me to speak with you prior totrial. I expect you will be called as a witness sometime during the week of**Press F11 to insert (date)**, at a time to be determined.




13.2.5 REQUESTING STUDENT RECORDS

March 8, 2010

Mrs. Jane RothNorth York Institute10 School StreetToronto ON M1N 3N3

Dear Mrs. Roth,


Please be advised that I have been retained by Suzie Smith with respect to a claim fordamages arising out of a car accident which occurred on December 22, 2009. Because of theserious nature of the injuries and the consequences of the injuries to my client it is important that Ireceive full and complete details of my client's entire academic history.

Accordingly, I ask that you provide me with all of the pupil records of my client, not onlyas defined in the Education Act, but any other records that may exist. Without in any way limitingthe generality of my request, the following are some of the documents I require:

(a) any and all report cards;

(b) transcripts with respect to any and all courses taken;

(c) details of any courses that were started, but not completed;

(d) the results of any and all psychological, aptitude and vocational tests, including anyand all reports and notes related thereto; and

(e) any and all records that may have been generated by the guidance department.

Please find enclosed our client's executed Authorization, authorizing the release ofrequisite documentation and information. If you have any questions, please do not hesitate tocontact me and we look forward to receipt of same.



13.2.6 REQUESTING PERSONNEL FILE FROM EMPLOYER

March 8, 2010

Mr. Ben Booth501 Somewhere StreetToronto ON M9I 3N3

Dear Ms. Smith,

Re: Suzie Smith ats Robert JonesOur File No.: 1234-001SIN: 351 158 458Our File No: 1234-001

Please be advised that I have been retained by Suzie Smith with respect to a claim fordamages arising out of a car accident which occurred on December 22, 2009.

I would appreciate your forwarding to me a copy of my client’s personnel file, in itsentirety, in order that I may assist her with this claim. In this regard, please find enclosed anexecuted Authorization.

Thank you for your assistance in this regard and if you have any questions, please do nothesitate to contact me.



13.2.7 REQUESTING EMPLOYMENT INSURANCE FILE FROMEMPLOYMENT CANADA

March 8, 2010

Ms. Andrea Anderson109 There CrescentToronto ON M3I 7N3

Dear Ms. Anderson,



In order to support her claim with respect to this action, I require copies of theEmployment Insurance file in your possession. I attach our client’s executed PersonalInformation Request Form.

I thank you for your assistance in this regard and look forward to receipt of the requestedmaterial. Should you require further information, please do not hesitate to contact me.



13.2.8 HUMAN RESOURCES DEVELOPMENT CANADA REQUESTINGCANADA PENSION DISABILITY FILE

March 8, 2010

Mr. James Jameson111 Nowhere LaneToronto ON M3N 3N3

Dear Mr. Jameson,



In order to support her claim with respect to this action, I require copies of the CanadaPension Disability file in your possession. Enclosed is our client’s executed Personal InformationForm requested.

I thank you for your assistance in this regard and look forward to receipt of the requestedmaterial. Should you require further information, please do not hesitate to contact me.



13.2.9 WORKPLACE SAFETY AND INSURANCE BOARD REQUESTINGFILE

March 8, 2010


SENT BY COURIER


SENT BY COURIER


Dear Mr. Michaels,

Re: Suzie Smith ats Robert Jones?Our File No.: 1234-001Claim No(s).: 425876Our File No: 1234-001


Please find enclosed an executed Authorization, authorizing you to release your fileunder the Freedom of Information Act with respect to the above-noted claim to me.

Thank you for your assistance. Please do not hesitate to contact me should you have anyquestions.


Peter WilcoxPW/kd

13.2.10 SOCIAL SERVICES REQUESTING FILE

March 8, 2010


SENT BY COURIER


SENT BY COURIER


Dear Mr. Michaels,

Re: Suzie Smith ats Robert JonesOur File No.: 1234-001Our Client: Suzie SmithD.O.B. October 27, 1975S.I.N. 351 158 458Our File No: 1234-001


Please find enclosed an executed Authorization signed by Suzie Smith authorizing you torelease your complete social services file.



Peter WilcoxPW/kd

13.2.11 OBTAIN CLINICAL NOTES AND RECORDS – FROM HOSPITAL

March 8, 2010

Mr. Robert Kennedy171 Hospital StreetToronto ON M3N 3N3

Dear Mr. Kennedy,

Re: Suzie Smith ats Robert JonesOur File No.: 1234-001Our Client: Suzie SmithD.O.B. October 27, 1975Health Card No.: 8874 385 557Hospital ID No.:Our File No: 1234-001

Please be advised that I have been retained by Suzie Smith with respect to a claim fordamages arising out of a car accident which occurred on December 22, 2009. I understand thatmy client was treated Mount Sinai Hospital.

I ask that you provide me with your complete hospital records including, emergencyrecords, radiology reports, operative records, outpatient records, doctor’s progress reports anddischarge summary.

I enclose my client’s executed Authorization permitting the release of this informationand my firm cheque in the amount of ***. If there is an outstanding balance, kindly forward yourinvoice.




13.2.12 OBTAIN CLINICAL NOTES AND RECORDS – FROM DOCTOR

March 8, 2010

Dr. Fred Fredrickson123 Doctor StreetToronto ON M3N 3N3

Dear Dr. Fredrickson,

Re: Suzie Smith ats Robert JonesOur File No.: 1234-001Our Client: Suzie SmithD.O.B. October 27, 1975Our File No: 1234-001

Please be advised that I have been retained by Suzie Smith with respect to a claim fordamages arising out of a car accident which occurred on December 22, 2009. I understand that myclient was treated by you.

I enclose my client’s executed Authorization permitting the release of your clinical notesand records and all consultation notes from *** to ***, including those clinical notes and recordsfrom previous doctors.

It is important that no information be released as to my client’s condition, either by letter ortelephone, to anyone other than my office without my prior approval.

I look forward to receipt of the requested material, together with your account.




13.2.13 OBTAIN AMBULANCE CALL REPORT

March 8, 2010

Mr. Greg Rich100 Outside StreetToronto ON M3N 3N3

Dear Mr. Rich,

Re: Suzie Smith ats Robert JonesOur File No.: 1234-001Our Client: Suzie SmithD.O.B. October 27, 1975Health Card No.: 8874 385 557Our File No: 1234-001


I ask that you kindly provide me with the ambulance records regarding this incident. Ienclose my client’s Authorization permitting the release of this information.




13.2.14 OBTAIN PHYSIOTHERAPY RECORDS – FROMPHYSIOTHERAPIST

March 8, 2010

Dr. Eric Ericson1011 Toronto StreetToronto ON M3N 3N3

Dear Dr. Ericson,

Re: Suzie Smith ats Robert JonesOur File No.: 1234-001Our Client: Suzie SmithD.O.B. October 27, 1975OHIP: 8874 385 557


I understand that my client has been/was attending at your clinic for treatment in relationto the injuries she sustained in this accident. Would you kindly provide me with a copy of yourclinical notes and records regarding my client at your earliest convenience. Please find enclosedmy client’s executed Authorization permitting the release of this information.




13.2.15 CCRA REQUESTING COPIES OF TAX RETURNS

March 8, 2010

Ms. Beth Bethany1978 Downtown StreetToronto ON M3N 3N3

Dear Ms. Bethany,

Re: Suzie Smith ats Robert JonesOur File No.: 1234-001Our Client: Suzie SmithSIN No.: 351 158 458Our File No: 1234-001

Please be advised that I have been retained by Suzie Smith with respect to a claim fordamages arising out of a car accident which occurred on December 22, 2009

I would appreciate receiving copies of my client’s certified income tax returns, includingall schedules, information slips and T4 slips, Notices of Assessment and any other documentsattached to the income tax returns, for the years 2005 to 2010. I also require the two pagecomputer summary. Please find enclosed my client's executed Authorization for the release ofthe requested information.

I would also ask you to immediately put this Authorization on file for future inquirypurposes.



13.2.16 MINISTRY OF HEALTH REQUESTING OHIP DECODED LISTOF SERVICES

March 8, 2010

Mr. Chris Christopher1 Anywhere StreetToronto ON M3N 3N3

Dear Mr. Christopher,

Re: Suzie Smith ats Robert JonesOur File No.: 1234-001Health Card No.: 8874 385 557Date of Birth: October 27, 1975Our File No: 1234-001


Would you kindly provide me with the decoded OHIP Summary, from *** to ***, atyour earliest convenience. Enclosed is my firm cheque in the amount of $*** for the decodedOHIP Summary.

I also enclose an executed Authorization permitting the release of information.

If you have any questions, please do not hesitate to contact me and I look forward toreceipt of same.



13.2.17 MINISTRY OF HEALTH REQUESTING SUBROGATIONSUMMARY

March 8, 2010

Mrs. Janet Janetson1 Anywhere StreetToronto ON M3N 3N3

Dear Mrs. Janet Janetson,

Re: Suzie Smith ats Robert JonesOur File No.: 1234-001Health Card No.: 8874 385 557Date of Birth: October 27, 1975Our File No: 1234-001


In order to assist my client in her claim herein, I require a subrogation summary on behalfof the Ministry of Health and Long-Term Care in this matter. Enclosed is my client’s executedAuthorization permitting the release of the summary.




12.2.18 REQUESTING MVA REPORT FROM POLICE DEPARTMENT

March 8, 2010

Mr. Rich Richardson1 Anywhere StreetToronto ON M3N 3N3

Dear Mr. Richardson,

Re: Suzie Smith ats Robert JonesOur File No.: 1234-001Date of Accident: December 22, 2009Location: Fairview MallOfficer:Badge No.:Our File No: 1234-001

Please be advised that I am the lawyer for Suzie Smith with respect to injuries sustainedin the above-noted motor vehicle accident.

At this time, I would ask for a copy of the Motor Vehicle Accident Report. Please findenclosed an executed Direction and Authorization in this regard. I also enclose our firm chequein the amount of *** in payment.




13.2.19 FREEDOM OF INFORMATION BRANCH ENCLOSINGAUTHORIZATION

March 8, 2010

Ms. Kim Kimberly1 Anywhere StreetToronto ON M3N 3N3

Dear Ms. Kimberly,



Please find enclosed an executed Direction and Authorization for the release ofdocumentation and information, a copy of the Motor Vehicle Accident Report and my firm chequein the amount of $***, representing the initial fee for the production of the Freedom of InformationAct material.

I would ask you to forward a copy of P.C. **Press F11 to insert (name of P.C.)**'s fieldnotes and statements, together with any witness statements taken with respect to the motor vehicleaccident.

Thank you for your assistance in this regard. Should you have any questions, do nothesitate to contact me.


Donald C. StienDS/jjEncl.

12.2.20 THANK YOU LETTER FOR PROVIDING REPORTS ANDENCLOSING PAYMENT

March 8, 2010


Dear Ms. Smith,


Please find enclosed my firm cheque in the amount of $*** in payment of your accountdated ***.

This matter has now settled and we thank you for your assistance.



13.2.21 ADVISING MATTER SETTLED




Dear Mr. Smith,


I act on behalf of the Plaintiff , Peter Griffin, in the above noted matter. The trial of thismatter is scheduled to proceed on **Press F11 to insert (date)**.

I confirm my telephone conversation with you advising that this matter has settled. I am inthe process of preparing a Dismissal Order and shall forward same shortly.

Thank you for your assistance and co-operation throughout in this matter.


Lisa J. SmithLJS/ra

13.2.22 ISSUE AND ENTER ORDER




Dear Mr. Smith,


Enclosed please find three copies of an Order approved as to form and content, togetherwith my firm cheque for $**Press F11 to insert (amount)**, which I would ask be issued andentered. Kindly forward a copy of the issued and entered Order to my office in the enclosedself-addressed stamped envelope.

Thank you for your assistance.


Lisa J. SmithLJS/ra

13.2.23 FOLLOW UP LETTER





Dear Mr. Jones,


I have yet to hear from you with respect to my letter dated **Press F11 to insert (date)**, acopy of which is attached for your reference. I ask that you immediately forward the**Press F11 to insert (information)**.



Lisa J. SmithLJS/ra

13.2.24 CONFIRM ATTENDANCE AT DEFENCE MEDICAL NO TRANSPORT


WITHOUT PREJUDICE




Dear Mr. Jones,


I am writing to confirm that my client will attend the defence medical assessmentscheduled to proceed on **Press F11 to insert (date)** at **Press F11 to insert (time)** withDr. **Press F11 to insert (name)**.

My client will not require transportation to the assessment, however, will be submitting**Press F11 to insert (his/her)** expenses for mileage and parking following the assessment.Kindly confirm that you will reimburse my client for same.


Lisa J. SmithLJS/ra

13.2.25 CONFIRM ATTENDANCE AT DEFENCE MEDICAL REQUIRES TRANSPORT


WITHOUT PREJUDICE




Dear Mr. Jones,


I am writing to confirm that my client will attend the defence medical assessmentscheduled to proceed on **Press F11 to insert (date)** at **Press F11 to insert (time)** withDr. **Press F11 to insert (name)**.

Please be advised that my client will require transportation to and from the assessment. Myclient home address is:

**Press F11 to insert (address)**

Kindly provide my office with the transportation details once you have confirmed same.


Lisa J. SmithLJS/ra

13.2.26 NOTICE LETTER

January 17, 2013

WITHOUT PREJUDICE

SENT BY COURIER

Mr. Charles Montgomery Burns1001 Mammon CourtToronto, OntarioM3E 3E3

Dear Mr. Burns,

Re: Marge Bouvier Simpson v Burns Energy CorporationCourt File No.: 12/123456Our File No.: 20121219

I am the lawyer for Marge Bouvier Simpson who was injured as a result of an accidentwhich occurred at **Press F11 to insert (information)** located at**Press F11 to insert (information)** in **Press F11 to insert (City/Town)**, Ontario.

**Press F11 to insert (details of accident)**.

As a result of the accident, Marge Bouvier Simpson received injuries to her**Press F11 to insert (information)**.

**Press F11 to insert (details of treatment)**

This accident was solely caused by the negligence of **Press F11 to insert (name)** forfailure to **Press F11 to insert (information)**. Be advised that my client is holding**Press F11 to insert (name)** completely liable for all general damages for pain and suffering,special damages, out-of-pocket expenses and all other damages, costs and legal fees anddisbursements arising out of the said accident. Also be advised that Marge Bouvier Simpson isalso claiming damages under the Family Law Act for loss of guidance, care and companionship asa result of the said accident. My client also claims pre-judgment interest and post-judgmentinterest.

Please contact my office, or have your legal representative contact my office, to discussthis matter further. If I do not hear from you within ten (10) days from the date of this letter, I willproceed to commence legal proceedings.

-2-

Yours very truly,GREENBERG & GRIFFIN


cc: Mrs. Marge Bouvier Simpson

13.2.27 REQUEST FOR PRESCRIPTION SUMMARY



Peter Griffin1 Anywhere St.Toronto, ON M5C 1B4

Dear Mr. Griffin,


I am the lawyer for Peter Griffin as a result of injuries received as a result of a**Press F11 to insert (information)** which occurred on January 25, 2013.

Please find enclosed a signed Authorization authorizing and directing you to forward acomplete prescription summary from **Press F11 to insert (dates)**.

I look forward to receipt of the summary, together with your account, and thank you foryour assistance in this matter.



13.3.1 AUTHORIZATION AND DIRECTION TO CORRESPOND WITHLAWYER

DIRECTION & AUTHORIZATION

TO: ***

RE: Suzie Smith ats Robert JonesOur File No.: 1234-001

I, THE UNDERSIGNED, HEREBY DIRECT AND AUTHORIZE you to speak to

Greenberg and Griffin LLP, Barristers & Solicitors, or anyone they may authorize, with respect to

my litigation file for which you represented me.

THIS SHALL BE YOUR GOOD AND SUFFICIENT AUTHORITY FOR SO DOING.

DATED AT **Press F11 to insert (city/town)** in the **Press F11 to insert (region)** this

**Press F11 to insert (date)**.

Witness Suzie Smith

13.3.2 DIRECTION AND AUTHORIZATION FOR EMPLOYMENTRECORDS

DIRECTION AND AUTHORIZATION

TO: ***

RE: Suzie Smith ats Robert JonesOur File No.: 1234-001SIN: 351 158 458Employee No.: 8978544451

YOU ARE IRREVOCABLY DIRECTED AND AUTHORIZED to forward to my

lawyers, Greenberg and Griffin LLP, 325 Bay Street, Suite 2600, Toronto ON M5A 1F4, or to

whom they may direct, any and all information they may request with respect to my employment

with your company, including absences, wage rates, lost wages, sick benefits, etc., as requested

and specified by my lawyers.




Witness Suzie Smith

13.3.3 DIRECTION AND AUTHORIZATION FOR INCOME TAXRETURNS


TO: CANADA CUSTOMS AND REVENUE AGENCY

RE: Suzie Smith ats Robert JonesOur File No.: 1234-001SIN: 351 158 458



whom they may direct, copies of my income tax returns and relevant Notices of Assessment for the

year(s) as specified by my lawyers for the purposes of a legal action which the said law firm is

litigating on my behalf.




Witness Suzie Smith

13.3.4 DIRECTION AND AUTHORIZATION FOR POLICE REPORTAND/OR WITNESS STATEMENTS


TO: ***

RE: Suzie Smith ats Robert JonesOur File No.: 1234-001Date of MVA: December 22, 2009Location of MVA: Fairview MallOfficer: Peter PetersonOccurrence No.: 5122-7712



whom they may direct, a copy of the police report and/or any witness statements, police officers’

notes or any other information they may request with respect to the above-referenced matter.

AND FOR SO DOING THIS SHALL BE YOUR GOOD AND SUFFICIENT

AUTHORITY.

DATED AT **Press F11 to insert (city/town)** in the **Press F11 to insert (region)**

this **Press F11 to insert (date)**.

Witness Suzie Smith

13.3.5 DIRECTION AND AUTHORIZATION FOR RELEASE OFINFORMATION UNDER THE FREEDOM OF INFORMATIONACT

DIRECTION AND AUTHORIZATIONFOR RELEASE OF INFORMATION UNDER

Freedom of Information Act

RE: Suzie Smith ats Robert Jones?Our File No.: 1234-001Date of Birth: October 27, 1975

I HEREBY DIRECT AND AUTHORIZE the Ministry of the Solicitor General to release

to my lawyers, Greenberg and Griffin LLP, 325 Bay Street, Suite 2600, Toronto ON M5A 1F4,

the following information with respect to the motor vehicle accident in which I was involved on

December 22, 2009, Fairview Mall (see copy of Motor Vehicle Accident Report attached):

police notes, witness statements, records, field notes, diagrams, photographs,calculations, reconstruction notes, test results, reports and draft reports, includinginterviewing notes of the investigating officer(s) of the above-noted accident.


AUTHORITY.



Witness Suzie Smith

13.3.6 DIRECTION AND AUTHORIZATION FOR SCHOOL RECORDS


TO: **Press F11 to insert (TO)**

RE: Suzie Smith ats Robert JonesOur File No.: 1234-001ID No.: 11547856Date of Birth: October 27, 1975



whom they may direct, all of the contents of my school file presently held in your office,

including all records, grades and any other information as they may require.


AUTHORITY.

DATED AT **Press F11 to insert (city/town)** in the **Press F11 to insert (region)**

this **Press F11 to insert (date)**.

Witness Suzie Smith

13.3.7 DIRECTION AND AUTHORIZATION FOR INSURERREQUESTING FILE


TO: ***

RE: Suzie Smith ats Robert JonesOur File No.: 1234-001Claim No.: 425876Date of MVA: December 22, 2009Policy No.: 114



whom they may direct, any and all information and documentation which they may require with

respect to my insurance coverage and claim with your company including, but not limited to:

notices and reports of loss, accident reports, witness statements includingstatements from me, vehicle appraisals, photographs, property damage, adjusters’and examiners’ file notes, photographs, proof of claims submitted pursuant to myautomobile insurance policy, proofs of loss submitted by me, medical reports,investigative reports, wage verification documents, physiotherapy, psychologicaland rehabilitation reports, payment summary and breakdown of benefits, anyinvestigation/surveillance reports and video material.




Witness Suzie Smith

13.3.8 DIRECTION AND AUTHORIZATION FROM CLIENT FORCONTENTS OF FILE


TO: ***

RE: Suzie Smith ats Robert Jones

Our File No.: 1234-001



whom they may direct, all of the contents of my files presently held in your office, including any

and all materials, records and information in connection with the above-referenced matter.


AUTHORITY.



Witness Suzie Smith

13.3.9 DIRECTION AND AUTHORIZATION TO THE MINISTRY OFHEALTH AND LONG-TERM CARE (OHIP)


TO: ***

RE: Suzie Smith ats Robert JonesOur File No.: 1234-001Health Card No.: 8874 385 557Date of Birth: October 27, 1975



whom they may direct, any information they may request with respect to services rendered as set

out in their letter to you.


AUTHORITY.



Witness Suzie Smith

13.3.10 DIRECTION AND AUTHORIZATION TO RELEASE ALLDOCUMENTS TO LAWYER


TO: ***

FROM: Suzie Smith

RE: Suzie Smith ats Robert Jones

Our File No.: 1234-001

I HEREBY DIRECT AND AUTHORIZE you to release all papers, documents and

materials forming my file with your office to the law firm of:

Greenberg and Griffin LLP325 Bay Street, Suite 2600, Toronto ON M5A 1F4Attention: Donald C. Stien

AND THIS SHALL BE YOUR GOOD AND SUFFICIENT AUTHORITY FOR SO

DOING.



Witness Suzie Smith

13.3.11 DIRECTION REGARDING FUNDS

DIRECTION RE: FUNDS

TO: ***

RE: Suzie Smith ats Robert JonesOur File No.: 1234-001

YOU ARE IRREVOCABLY DIRECTED to pay to my lawyers, Greenberg and Griffin

LLP, 325 Bay Street, Suite 2600, Toronto ON M5A 1F4, or to whom they may direct, the

proceeds of the above-referenced matter, AND FOR SO DOING THIS SHALL BE YOUR

GOOD AND SUFFICIENT AUTHORITY.



Witness Suzie Smith

13.3.12 MEDICAL AUTHORIZATION

MEDICAL AUTHORIZATION

TO: ***

RE: Suzie Smith ats Robert JonesOur File No.: 1234-001Health Card No.: 8874 385 557Date of Birth: October 27, 1975

I, THE UNDERSIGNED, HEREBY AUTHORIZE you to release to my lawyers,

Greenberg and Griffin LLP, 325 Bay Street, Suite 2600, Toronto ON M5A 1F4, or to whom they

may direct in writing, any and all information they may require in connection with my physical

condition and injuries from the date specified by my lawyers, including but not limited to all

clinical notes and records, consult notes, x-rays, hospital records, medical records, progress notes,

nurses’ notes, reports on diagnostic tests, medical opinions and/or any other knowledge or

information which you may possess.


AUTHORITY.



Witness Suzie Smith

13.3.13 DIRECTION AND AUTHORIZATION - CRA


TO: CANADA REVENUE AGENCY – TAX SERVICES OFFICE

RE: Peter Griffin**Press F11 to insert (address)**


lawyers, Greenberg and Griffin, 123 Street Drive, Suite 3000, Toronto, Ontario M5B 2E1, or to

whom they may direct, all of the contents of my files presently held in your office, including any

and all materials such as income tax returns, notices of assessments, reassessments or other

materials filed by me, records and information in connection with the above-referenced matter for

**Press F11 to insert (all years available, or year start and year end)**.


AUTHORITY.

DATED AT **Press F11 to insert (city/town)** in the **Press F11 to insert (region)** this**Press F11 to insert (day and month)** 2013.

Witness Peter Griffin

14.1.1 INTERIM ACCOUNT

March 8, 2010


Dear Ms. Smith,


As I discussed, I will be providing you with interim accounts as this matter progresses.These interim accounts serve two purposes. First, they provide you with details of the work Ihave undertaken on your behalf. Second, they allow you to closely monitor the fees anddisbursements you are incurring as this case progresses.

I have prepared the enclosed interim account and trust that it is satisfactory. The interimaccount may not include all the time I have recorded to date since the preparation of an accountoften takes a number of days to be processed.




14.1.2 DISBURSEMENT ACCOUNT

March 8, 2010



Dear Ms. Smith,


Enclosed is my disbursement account. Since the account represents disbursements I havepaid on your behalf, please make every effort to pay the account as soon as reasonably possible.




14.1.3 FINAL ACCOUNT

March 8, 2010



Dear Ms. Smith,


Enclosed is my final account for professional services. I trust this satisfactorily concludesthis matter and would like to thank you for retaining the services of my firm.

If you have any questions or need any assistance in the future, please do not hesitate tocontact me.



14.2.1 FIRST COLLECTION REQUEST

March 8, 2010


Dear Ms. Smith,


Please be advised that your account is more than sixty (60) days overdue. I trust that thisis merely an oversight on your part and look forward to payment within the near future.

If you have any questions or wish to discuss this matter, please do not hesitate to contactme.



14.2.2 SECOND COLLECTION REQUEST

March 8, 2010


Dear Ms. Smith,


Please be advised that your account is now more than ninety (90) days overdue. I trustthat this is merely an oversight on your part and look forward to payment within the near future.

If you have any questions or wish to discuss this matter, please do not hesitate to contactme.



14.2.3 THIRD COLLECTION REQUEST

March 8, 2010


Dear Ms. Smith,


Further to my previous letter, I note that your account is still overdue. If you areexperiencing financial problems or would like to make arrangements to pay the account by post-dated cheques, please contact me to discuss this matter.




14.2.4 FOURTH COLLECTION REQUEST

March 8, 2010


Dear Ms. Smith,


Further to my previous letters, I note that your account is still overdue and that you havenot contacted me to arrange payment. I have offered to negotiate instalment payments but youhave disregarded these offers.

This letter will constitute my final request for payment. If I do not receive payment of myoutstanding balance within ten (10) days, I will transfer this matter to my collections department.If this becomes necessary, I will hold you responsible for any additional costs associated with thecollection proceedings. You are an important client to me, and I would regret having to take suchaction.


