Outsourcing of records to foreign jurisdictions

Today's decision in Mathieson v. Scotia (unrep Master Abrams) is of considerably more importance than might at first appear.

The defendant, a major Canadian financial institution, outsourced the storage of its electronic documents to a company in foreign country.  As a result, it was not possible to summons a witness from the document storage company to give trial evidence regarding the storage and searches of those documents.  The plaintiff sought such evidence for trial and required examination via commission of employees of the foreign company.  The defendant objected strongly.

Master Abrams allowed the commission stating:

The issues now to be explored cannot be explored with the defendant's own representatives, given the outsourcing of the defendant's archival of electronic records to a U.S. entity .  I note that, but for the fact it is a non-Ontario entity that was involved in the storage and retrieval of emails relative to the plaintiff, the plaintiff would be able to secure the attendance, at trial, of those witnesses whom he now seeks to examine.

Had the Master not allowed the examination, companies with foreign outsourcing might not be subject to the same production as companies maintaining re cords in Ontario.