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In R. v. Piaskowski et al, 2007 MBQB 68, the Manitoba Court of Queen’s Bench was confronted with an extraordinary argument. Federal prosecutors provided electronic disclosure to counsel for several co-accused in a complex, international drug investigation. Upon seeing the massive amounts of disclosure, defense counsel balked.

Counsel for several of the accused made applications to court to require the Crown to produce paper disclosure of every document contained in the electronic disclosure. As this would have constituted hundreds of thousands of pages of discovery for each accused, the Crown opposed the application.

Hubris

While counsel for the accused made a number of arguments in support of their application for paper disclosure, this gem from Paragraph 61 of the decision was the standout:

Counsel for some of the accused complain that they have been accustomed to using hardcopies of documents for the course of their careers, and to now ask them to adjust to only using computerized versions of documents would result in an unfairness to them and their clients.  This would necessitate the question of whether other counsel should be called upon to represent the accused if such counsel are more computer literate.  This would thereby limit the accused’s right to choice of counsel.

While the court ultimately rejected this argument, the fact that it was made at all did not bode well for the future of ediscovery in a place like Manitoba. While the decision was handed down in 2007, I can report that at least as of 2019 when I last practiced law in Canada, a significant fraction of lawyers remained dead set against the innovative use of technology, including electronic disclosure.

Continuing Resistance

From attorneys who refused to use computers, to those who wouldn’t get a Blackberry (back when Blackberries were a thing), resistance to using electronically stored information was endemic to the Bar in rural Manitoba.

And while not every lawyer I worked with shared this phobia, there were enough who did that it put tremendous pressure on the rest of us to refrain from implementing technological advancements.

About the Author:

Steven Toews

Steven Toews

Steven Towes is a former prosecutor and defense attorney, who now resides with his wife and labradoodle in Bermuda and offers legal and business writing and consulting services. Tweet him @steventoews.

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