On August 26, 2014, the Competition Bureau (the “Bureau”) published draft Guidelines for the Production of Electronically Stored Information (the “Draft Guidelines”) for public consultation. The Draft Guidelines sets out the Bureau’s preferred standard format for receiving electronically stored information during the course of an inquiry or investigation under the Competition Act (the “Act”), whether in response to compulsory or voluntary processes. The issuance of the Draft Guidelines is part of the Bureau’s Action Plan on Transparency, which aims to promote the development of a more cost-effective, efficient and responsive agency, while providing Canadians with more opportunities to learn about the Bureau’s work.
The Draft Guidelines apply to production of electronically stored information (“ESI”) within the following categories:
- a court order issued under section 11 of the Act;
- a court order issued under the Criminal Code;
- a supplementary information request issued under subsection 114(2) of the Act;
- a production pursuant to participation in the Bureau’s Immunity or Leniency Programs; and
- a voluntary production of information.
Producing parties are encouraged to communicate with the Bureau prior to collecting and producing ESI to discuss production details.
Further technical instructions include the following, among others:
- all ESI should be produced without passwords or encryption;
- all ESI should be produced in its original electronic (i.e. native) format;
- paper records produced as ESI should be produced as single page TIFF images with a resolution of 300 dpi and OCR generated text; hard copy photographs should be produced as colour .jpg or greyscale .tif, as applicable;
- records should be produced in full, preserving the “parent/child relationship”[1];
- the records should be indexed in response to the applicable paragraphs or subparagraphs in the order or request from the Bureau; and
- all ESI should be provided on appropriate portable storage media (e.g., USB/flash drive, CD, DVD, hard drive) and should be identified with a label setting out the matter name, the contents and the date of production. Each medium should contain no more than 250,000 files.
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The Bureau invites interested parties to provide their comments on the Draft Guidelines no later than October 27, 2014.
By Jack Yu
Republished with permission from Fasken Martineau DuMoulin LLP
