On Monday, September 19, 2011, Sedona Canada, the Law Society of Upper Canada, the Ontario Bar Association, the Advocates Society and the Ontario e-Discovery Implementation Committee collaborated to present “The Ontario e-Discovery Institute: e-Discovery for All Cases and All Lawyers” in Toronto, Ontario. Reported to be the largest e-discovery conference in North America, over 610 people attended in person or by live webinar. It was a very diverse audience from across the country, illustrating a very real interest in all things e-discovery.
Susan Wortzman and Susan Nickle participated on panels on “e-Discovery Negligence” and “Cost Containment and e-Discovery”, respectively. Other panels featured Canadian and American judges and masters, members of the Bar from across Canada and the United States, vendors and litigation support professionals. This multi-perspective approach led to interesting and spirited discussions about privacy, cost-containment, emerging technologies, and other topical e-discovery issues.
Stay tuned to our blog as we feature some of these issues in upcoming posts!
“The illiterate of the 21st century will not be those who cannot read and write, but those who cannot learn, unlearn, and relearn.” Alvin Toffler
Rapid changes in technology make this quotation particularly true in the e-discovery realm. New approaches, different digital sources of information, new and improved technology, and the practical realities of limited resources all challenge litigators to approach each file in new and innovative ways to minimize the costs of discovery. In short, one size does not fit all.
The moral of this story is to stay flexible. Be adaptable. Don’t get tied down to one approach, one tool, or one piece of software. In the words of Toffler, “learn, unlearn and relearn” to ensure that all of the phases of discovery are conducted in the most timely and cost effective manner possible. This is simple but not easy. It requires e-discovery literacy - a commitment to stay current on new and emerging discovery approaches and technologies: early case assessment, processing, predictive coding. Your law firm and your clients will thank you.
If you don’t know what’s out there, ask your IT department, a forensic vendor, or call us. We’re always happy to discuss all things e-discovery.
On March 5th, 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.
Records management policies and e-discovery experts were in the press again in “Beware Requests for E-Discovery: Trial by avalanche set to become norm for legal tacticians”, written by Julius Melnitzer and published on Wednesday, July 7, 2010 in the Legal Post section of the National Post. Of particular interest is that this article captures the view of representatives from both the Canadian and U.S. courts. Their shared view? To save costs and time in e-discovery, companies should develop and implement defensible records management policies and hire experienced e-discovery counsel.
Both Master Calum MacLeod, a case Master for the Ontario Superior Court of Justice in Ottawa, and Judge Frank Maas, a Magistrate Judge of the U.S. District Court for the Southern District of New York, not only unanimously endorsed records management policies, but strictly warned companies of the implications of not having them.
Master Calum MacLeod cautions that such companies will be hard pressed to argue that a discovery request is unreasonable when they have no idea in terms of time and cost what is required to retrieve the information sought by the opposing party. He states:
“Companies without a protocol for managing electronically stored information are in big trouble for a number of reasons. It will cost them a fortune to respond to e-discovery requests; they’re going to have a tough time finding what they need and it will be difficult for them to raise the proportionality argument when they have no idea what’s involved in retrieving the information.”
What are the courts looking for in terms of a sound, defensible policy? In the words of Judge Maas, “judges are looking for consistency, internal logic and transparency, and in certain cases, a retrieval policy that ensures metadata is not altered.”
With respect to e-discovery expertise, Judge Maas believes that unsophisticated companies are at the greatest risk. He warns that:
“The difficulty is that these companies try to deal with e-discovery themselves without retaining experienced counsel, and then they end up spending far more money to salvage the situation.”
The view of these experts is that pro-active work saves time and money in e-discovery. It’s difficult to argue with that theory. Is your company prepared?
Corporate Counsels’ Guide: Developing a Strategic Approach to Containing the Costs of eDiscovery
Well-positioned on the heels of the G20 Summit in downtown Toronto comes Legal IQ’s (a division of IQPC) conference to assist corporate counsel in curtailing the rising costs of discovery. From June 28th to 30th, e-discovery experts (and those wanting to be in the know) from across North America will meet at the Sheraton Toronto Centre to address this very timely issue.
What is interesting about this conference is its very balanced speaker mix of in-house and external counsel from private and public organizations, judges, and e-discovery vendors, from across both Canada and the United States. Primarily conducted in workshop and panel format, this conference emphasizes a very practical approach to minimizing the costs of e-discovery.
Topics will include:
Overcoming eDiscovery and informational challenges
Conquering new sources of eDiscovery: Facebook and other social media
Aligning the interests of in-house counsel, outside counsel and IT teams
Building cutting-edge programs with a winning team that will reduce costs
Solving eDiscovery problems in M&A and departing employees
Using eDiscovery in criminal, fraud, tax and white collar crime cases
Implementing the Rules of Civil Procedure to contain costs for corporations and governments
As a member of the Advisory Board for this conference, our Susan Nickle is co-facilitating a workshop on “Early Case Assessment Strategies and the Pitfalls of Disjointed Collection”.
We’ll keep you posted on key (perhaps contentious?) issues arising at this interesting conference
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.
I have just finished a cross-country conference tour. I started on September 16th 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 23rd in Toronto discussing e-discovery issues. The last part of my travels took me yet further east to Halifax on September 30th 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.
