E-Discovery Blog Canada » e-Discovery Costs

Sophisticated software can help lawyers, not replace them

admin — Tue, 22 Mar 2011 13:42:03 +0000

On March 5^th, the New York Times published an article entitled “Armies of Expensive Lawyers, Replaced by Cheaper Software” which discussed the “new e-discovery software that can analyze millions of documents in a fraction of the time, and at a fraction of the cost consumed by human lawyers, even deducing patterns of behaviour”. It discussed the explosion of electronically stored information, the technology used to analyze that data and how all this has disrupted the legal job market.

The article provided a clear and concise overview of the new systems available to assist legal teams. However, the conclusion that these technologies will replace “expensive lawyers” misses the mark. All of the technologies mentioned in the article require a combination of machine and human interaction in order to operate. Humans have to “teach” the computer to identify relevant information. As with any educational process, the more highly skilled the teacher, the better the lesson will be. What the technologies will replace are lawyers working at very basic levels without a strong understanding of the case.

Although the new technologies will force lawyers to learn new ways to approach document discovery, the technologies are just one cog in the legal machine. Lawyers still need to understand the content of the documents to build their case. The new systems will help lawyers to zero in on the documents containing the relevant content.

No matter how sophisticated a computer system gets, it can’t make subjective evaluations. The legal process is not black and white – it’s ultimately based on judgement and inference. As a result, it will always require highly skilled talent.

Caskey on Interim Costs

admin — Mon, 26 Oct 2009 19:51:54 +0000

The issue of cost allocation of electronic information in the context of the discovery process has not been resolved in Canada. As a general rule, the interim costs of preservation, retrieval, review and production of electronic records is borne by the party producing them. Similarly, the opposing party is required to incur the cost of making a copy for its own use, just as it had previously with paper documents. There has been a hesitancy on the part of the Canadian judiciary to make other cost-shifting orders as costs in Canada are generally awarded at the final stage of litigation.

Then comes e-discovery which has given rise to a radical expansion in the quantity and type of disclosure. Sedona Canada Principle 12 clearly provides for cost sharing or shifting before the final stage of litigation either by agreement of the parties or by court order.

Master Brott of the Ontario Superior Court has recently made such an interim costs order. In Borst v. Zilli, [2009]O.J. No. 4115, the parties agreed to retain an independent computer consultant (“ICC”) to copy the defendants’ computer data. They also agreed to retain an independent solicitor (“ISS”) to review the documentation for relevancy and privilege before it be produced to the plaintiffs. The Court held that the costs of the ICC should be borne by the plaintiffs in this case and that the costs of the ISS should be shared equally between the parties.

Litigants beware – Canadian courts are starting to make interim cost-shifting awards with respect to accessible electronic records! If you are concerned about the costs of your e-discovery litigation and how to best manage e-discovery in Canada, contact Wortzman Nickle.

Wortzman on early case assessment..

admin — Fri, 02 Oct 2009 18:55:54 +0000

I have just finished a cross-country conference tour. I started on September 16^th at the Sedona Conference, Getting Ahead of the e-Discovery Curve: Strategies to Reduce Costs & Meet Judicial Expectations in Vancouver. Moving east, I then participated in the Canadian Institute: Class Actions Litigation conference on September 23^rd in Toronto discussing e-discovery issues. The last part of my travels took me yet further east to Halifax on September 30^th to an Insight conference, E-Discovery and E-Documents. I can now safely say that I have heard from external counsel, in-house counsel, vendors, records management and IT participants on their latest issues and concerns surrounding e-discovery in Canada.

The buzz at all three conferences seems to be “early case assessment”. While the never ending issues of preservation and proportionality were discussed, there was a tremendous focus now on costs and how to reduce the costs of e-discovery. Peg Duncan and I prepared a paper for the Sedona Conference called e-Discovery: Bringing Down the Costs which garnered much interest at the conference. I have since had several calls and questions from lawyers and in-house counsel wanting to discuss early case assessment tools.

In practice, I have recently been involved with two cases where we have very successfully used early case assessment tools to quickly identify key electronic records in massive collections of data. Although this is not the end of the e-discovery review, it has allowed counsel to inexpensively and very efficiently identify key documents for their cases. It is the inexpensive part that our clients are most interested in achieving.

Wortzman and Nickle continue to look at early case assessment tools to provide our clients with advice on the best way to assess and analyze their electronic records and their case, early in the lifespan of a matter.