How it works in Canada
Production in Canada runs through each province’s rules of court. In Ontario, a party serves an affidavit of documents listing everything relevant in its power, possession or control, then produces the non-privileged items. Alberta, British Columbia and Nova Scotia have their own versions. Commercial cases on the Toronto Commercial List or in the Court of King’s Bench in Calgary can involve hundreds of thousands of records, most of them electronic.
A shared room replaces the old practice of couriering hard drives between firms. Each side loads its production in Bates-numbered sets, opposing counsel downloads or reviews online, and experts get their own restricted space. Mediators can be given a short, curated folder ahead of a mediation day. Because uploads are time-stamped, the room also settles arguments about when a production was actually delivered, which matters under timetables set at case conferences and in undertakings charts.
The Sedona Canada Principles, now in a third edition published in January 2022, are cited by Canadian courts and written into Ontario’s rules as a factor in e-discovery plans. They push parties to agree early on scope, format and the platforms they will use, which is where a room is usually discussed. Courts expect counsel to raise these questions at the first meet and confer, not after productions have started, so the choice of platform belongs in the early planning.
Best data rooms for litigation
Our five criteria, re-weighted for this use case, plus a small bonus for providers built around it.
- 1
Ellty ~C$211/mo 9.1 Visit Ellty - 2
iDeals Quote 8.7 - 3
Datasite Quote 8.7 - 4
Firmex Quote 8.6 - 5
Ansarada Quote 8.5 - 6
Intralinks Quote 8.5 - 7
SmartRoom Quote 8.5 - 8
Drooms Quote 8.3 - 9
Box ~C$21/user/mo 8.0 - 10
DealRoom Quote 7.9
What goes in the data room
- 0101 Pleadings
Statements of claim and defence, replies, and any amended pleadings with court stamps.
- 0202 Discovery plan and orders
The agreed discovery plan, case conference endorsements and procedural orders.
- 0303 Plaintiff productions
Bates-numbered volumes matching Schedule A of the affidavit of documents.
- 0404 Defendant productions
Same numbering format, uploaded in the volumes served.
- 0505 Third-party productions
Records obtained by order from non-parties, kept separate for deemed undertaking tracking.
- 0606 Transcripts
Examination for discovery transcripts, undertakings charts and answers to undertakings.
- 0707 Expert reports
Signed reports and acknowledgments of expert’s duty (Form 53 in Ontario), with access for named experts only.
- 0808 Motions
Motion records, factums and books of authorities for interlocutory steps.
- 0909 Mediation brief
Short set shared with the mediator; settlement privilege applies.
- 1010 Clawback log
Notices of inadvertent production and confirmation of removal.
Canadian rules that apply
Deemed undertaking rule
Documents and evidence obtained through discovery may be used only for the proceeding in which they were produced, unless the court orders otherwise. In Ontario it is Rule 30.1; in other provinces it comes from the common law and Juman v. Doucette, 2008 SCC 8. Access controls help show compliance.
Sedona Canada Principles
The 12 principles cover proportionality, preservation, early discussion of a discovery plan, and privilege protection. Ontario’s Rules of Civil Procedure require parties to consult and have regard to them when agreeing a discovery plan.
Privilege and clawback
Inadvertently produced privileged documents can often be recovered, but courts look at how quickly the producing party acted. Agree a clawback protocol in the discovery plan and make sure the room lets you withdraw a document and see who opened it.
Features to insist on
| Data room | Activity log | Dynamic watermarks | Bulk upload | In-room redaction | View and download rights |
|---|---|---|---|---|---|
| Ellty | Yes | Yes | Yes | No | Yes |
| iDeals | Yes | Yes | Yes | Yes | Yes |
| Datasite | Yes | Yes | Yes | Yes | Yes |
| Firmex | Yes | Yes | Yes | Yes | Yes |
| Ansarada | Yes | Yes | Yes | No | Yes |
| Intralinks | Yes | Yes | Yes | Yes | Yes |
| SmartRoom | Yes | Yes | Yes | Yes | Yes |
| Drooms | Yes | Yes | Yes | Yes | Yes |
- Activity log. Per-user history of opens, prints and downloads with timestamps, which you can export for the closing binder.
- Dynamic watermarks. The reader's identity and the date are printed across every page, which discourages screenshots and identifies the source of a leak.
- Bulk upload. Upload an entire set of nested folders at once, with the index numbers kept as they were.
- In-room redaction. Hide social insurance numbers, pay figures or client names on the platform itself, without keeping two versions of the file.
- View and download rights. Choose, document by document, whether a guest may only read, may print or may download, and change it later.
How to set it up
- 1Agree the room in the discovery plan
Name the platform, the production format, the numbering scheme and who pays in the discovery plan. Setting this out early avoids later motions over whether a production delivered through the room counts as served.
- 2Create one space per party
Give each party an upload area it controls and read access to the others. Keep third-party productions apart so counsel can track which deemed undertaking or sealing order applies to which set.
- 3Load productions with load files
Upload in the same volumes listed in the affidavit of documents, with metadata and native files where agreed. Check that page counts and Bates ranges match before notifying the other side, and keep the load file with each volume.
- 4Apply watermarks and print limits
Turn on dynamic watermarks showing the viewer’s name and date. For confidential commercial records, disable printing or downloads so copies outside the action are easier to trace. Record these settings in the discovery plan.
- 5Restrict expert and mediator access
Add experts only to the folders they are retained to review, with an end date tied to their report deadline. Give the mediator a separate brief folder that closes after the mediation.
- 6Close out at the end of the action
When the case settles or judgment is final, export your production record and access history, then ask the provider to delete all copies so the room does not outlive the deemed undertaking.
Common mistakes
- Mixing third-party productions with party productions, which makes it hard to show compliance with specific sealing or confidentiality orders.
- Uploading without matching Bates ranges to the affidavit of documents, which invites a motion over incomplete production.
- Giving an expert access to the whole room instead of the folders in their retainer.
- Leaving the room live after settlement, with produced documents still available.
FAQ
Does using a data room count as service of documents?
Only if the parties agree or the court orders it. Most counsel write the platform and delivery method into the discovery plan, and send a short notice when each volume is uploaded so there is a clear date of production.
How does the deemed undertaking rule affect the room?
Anything obtained through discovery can be used only for that proceeding. A room helps because counsel can limit who has access, watermark every page and pull logs if there is an allegation of misuse. It also makes it easier to delete everything at the end.
Are the Sedona Canada Principles binding?
They are guidance, not law, but Canadian courts cite them often and Ontario’s rules require parties to consult and have regard to them when they agree a discovery plan. Using them as the basis for platform and format decisions helps if a dispute about production reaches a judge.