Over the past several years, the Susans have worked with a significant number of Canada’s top law firms. Several of these firms have invited us in-house, to speak to groups of litigators and business lawyers about the perils and opportunities inherent in e-discovery, and the benefits of proper records management. Each session is 90 minutes in length. These presentations have evolved over time to keep pace with the changes in technology and approach to discovery.
We are pleased to announce that these Wortzman Nickle education programs have now been accredited by the Law Society of Upper Canada as follows:
- Our e-Discovery program has been accredited for 1 hour toward the New Member Requirement and 0.5 hours toward the Professionalism Requirement for ongoing members.
- Our 90 minute Records Management program has been accredited for 1.5 hours toward the New Member Requirement and 1 hour toward the Professionalism Requirement for ongoing members.
These time-effective and interactive sessions are ideal for a lunch meeting or firm retreat. Call us to discuss bringing these sessions to your team.
Tags: discovery, discovery plan, e-discovery, e-discovery Canada, e-discovery processes, e-discovery project management, ediscovery, ediscovery Canada, lawyer review, managing e-discovery costs, meet and confer, Proportionality, Records Management, Sedona Canada Principles, Sedona Canada Principles ®
Blog | admin April 15, 2011 | 
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This year, Wortzman Nickle presented on three separate topics at the Osgoode course on Electronic Evidence, held in Toronto on January 24th and 25th.
Chuck Rothman and Karen Groulx of Pallett Valo LLP presented the “Admissibility of Electronic Evidence”. The unique properties of digital information compared to its paper counterpart were explored, and the speakers emphasized that admissibility needs to be considered from the start – a misunderstanding regarding the process that created the electronically stored information may ultimately render the information inadmissible.
Chuck and Karen also discussed social networks and cloud computing, and how they may impact electronic discovery. The growth of social networking in the corporate environment is becoming exponential – when was the last time you saw an ad that didn’t ask you to visit the company’s Facebook page? The use of cloud computing is also growing at a substantial rate, with some predictions suggesting that most electronically stored information will be stored “in the cloud” in ten years. Although these technologies will change how electronic discovery is conducted, the basic tenants will remain the same – electronic discovery is still discovery, with the same legal considerations. Only the techniques are different.
Susan Wortzman and Susan Nickle explored “Obtaining Relevant Electronic Evidence”, with a focus on how to defensibly obtain such information first from one’s own client, and then from opposing parties. One of the key issues raised by lawyers in the audience was how to properly cooperate with opposing counsel when he/she refuses to participate in the discovery plan/meet and confer process. While this lack of collaboration (regrettably) continues to be a problem, there are ways to protect your own client. In such circumstances, Susan Wortzman recommends drafting your own client’s discovery plan and sending it to the other side. By failing to respond, counsel may tacitly approve the plan.
As conference season is now in full swing, you can expect to see reports from a number of pending conferences, including Legal Tech New York 2011, in the coming weeks.
Tuesday morning, Lexis Nexis sponsored a panel discussion on proportionality, discovery plans, and the effects that the new Ontario rules are having on the way litigation is being carried out. The panel consisted of Master Calum Macleod, Kelly Freidman of Ogilvy Renault, and our very own Susan Nickle.
Proportionality was described as one component of a set of rules designed to encourage a cultural change in the legal community. It is no longer acceptable to proceed unilaterally – parties must come together sooner and communicate more often, in order establish a real dialog and focus on the issues at the beginning of the matter, not at the end.
The new rules, and particularly the requirement for a discovery plan, are leading lawyers to develop a better understanding of technology. To be sure, most lawyers will not become techno-geeks, but it is important for lawyers to understand how electronic information is stored and where it likely resides. It is equally important for lawyers to appreciate that discovery has not changed just because documents are stored electronically – in the end, the case will hinge on same handful of documents. The only difference is that those documents will fit on a CD rather than in a banker’s box.
There were many questions from the approximately 90 people in attendance, including dialogue about the concept of proportionality forcing litigants to think of alternative forms of proof, as some traditional forms of proof may be too cost-prohibitive.
The seminar clearly illustrated that the new rules are having an influence, and will continue to shape litigation into a more manageable, cost effective tool to resolve disputes.
Tags: costs, discovery, discovery plan, e-discovery Canada, early case assessment, litigation readiness, managing e-discovery costs, meet and confer, Proportionality, Sedona Canada Principles
Blog | admin October 22, 2010 | Comments (0)
The International Legal Technology Association’s annual conference wrapped up two weeks ago and the cyberways are abuzz with comments on the various presentations. One discussion of note focused on issues facing corporate IT. The message: they have no one to talk to inside the law firms. In-house counsel speak to their internal teams. Outside counsel speak to their teams. But the people who handle the data directly don’t talk to each other. And it’s causing problems.
In his seminar on defensible e-Discovery strategies, Browning Marean of DLA Piper in San Diego refers to this as the “Geek to Geek dance” (that is with a capital G out of respect to those who talk in zeros and ones).
Although corporations are getting smarter about the way they handle their ESI, bringing more technology in house and hiring more IT to handle it, Mr. Marean noted that both lawyers and their clients need to rethink the way they communicate with each other. In particular, he said that they need to bring the data experts together to have conversations with each other.
The real hurdles that need to be overcome are not technological, they’re human. Lawyers who try to decipher and communicate complex information about data to each other often don’t appreciate the details. They either understand most, some or none of the conversation. Even in the best scenario, a lot gets lost in translation.
The Geeks need to be talking to each other directly. Moreover, these conversations need to happen at the onset of the case. The Geeks, or at least the chief Geek, should also be integrated into the broader client development strategy. Set up a lunch or a meet and greet between your Geek and your client’s Geeks so they can learn from each other in advance of the next big piece of litigation.
Wortzman Nickle can assist you in bridging the gap between legal and IT. Call us for all your Geek-speak to legalese translation needs.
Recently, Master Short of the Ontario Superior Court of Justice canvassed the present state of litigation document management software and the potential difficulties that must be overcome by counsel working co-operatively.
The Case
In Apotex Inc. v. Richter Gedeon Vegyeszeti Gyar RT, [2010] O.J. No. 2718, the defendant Ercros moved for a further and better affidavit of documents, including a particularized privilege schedule, and production of all relevant documents in the power, possession and control of the plaintiff, Apotex.
Apotex moved for assistance in the particularization and the provision of enhanced electronic access to Ercros’ productions. Apotex alleged that the DVD originally produced by Ercros did not sufficiently describe its documents and further, that Apotex had experienced difficulty in retrieving specific documents from it. Ercros then produced its documents in a Summation Briefcase to allow Apotex to import the documents directly into its own document management software. Apotex took the position that was insufficient.
The Decision
Master Short favoured Ercros, citing the new Rules of Civil Procedure, The Sedona Canada Principles®, and the test for proportionality. Ercros was granted the relief sought, while Apotex’s motion was dismissed. The provision of the Summation Briefcase was deemed sufficient in that Apotex had no further difficulties accessing the Ercros productions.
Lessons Learned (and to be learned)
Noting that “there are lessons to be learned by the profession on how to deal with what are clearly problems that are contributed to by enhanced modern computing power and software”, Master Short commented favourably on counsel’s efforts in this case to fashion a sensible solution to the problems encountered. The use of electronic production to gain tactical advantage was discouraged:
The requirement, in part arising from the “equality of arms” component of proportionality, does not mean that a party need provide a computer system to their opponents, but they do need to work together to facilitate the exchange of information and a practical production and exchange of the “bibliographic data” attached to their productions.” (para. 71)
What does this case mean?
This case stands for a number of interesting and useful discovery propositions, including:
- In this electronic age, a motion for a further and better affidavit of documents can be brought solely to obtain the court’s assistance in establishing the format in which electronically stored information will be produced along with the format, content and organization of information to be exchanged; (para. 73)
- Courts expect counsel (to at least attempt) to solve their production problems in a co-operative and pragmatic fashion; (para. 42)
- Electronic production should not be used by one party to gain a tactical advantage over another; (para. 71)
- “Proportionality requires both sides to turn their minds to documents that are not in their direct possession. Often parties simply acknowledge they once had the originals of documents for which they now only retain a “file copy”. The requirement of the Form is broader. Particularly where there are corporate affiliates over which a party has the “power” to obtain copies. Whether listed in Schedule “A” or “C” such documents still need to be identified and produced, if available.” (para. 113)
Litigants who are still operating under the assumption that meet and confer sessions/discovery plans are merely optional should take note. Recent case law under the new Ontario Rule 29.1.03 confirms that courts are willing and able to mandate discovery plans.
In TELUS Communications Company v. Sharp, 2010 ONSC 2878 (CanLII), Master Donald E. Short considered the scope of Rule 29.1.03, requiring that parties to an action agree to a discovery plan. The defendant in the case had failed to serve an Affidavit of Documents or to communicate with the plaintiff regarding his availability for discoveries.
Noting that the language of the applicable sub-sections is mandatory (”the parties to the action shall agree to a discovery plan”), Master Short turned to the issue of what occurs when the parties fail to make the directed agreement. He noted that while the new Rules address some of the consequences of a failure to agree on a Discovery Plan, including the ability of the court to refuse to grant any relief or costs, they do not provide specific guidance with respect to the imposition of a plan.
Expressly citing sub-Rules 1.04(1) and (2) which address the General Principle and Proportionality provisions of the Rules, and noting that where specific matters are not provided for in the rules, determination by analogy shall be utilized, Master Short concluded he had the authority to impose a Discovery Plan upon an unwilling litigant.
It is gratifying to see the courts embracing the principles of cooperation and proportionality in the discovery context. Stay tuned as the Ontario courts consider and rule upon other cases under the 2010 amendments to the Ontario Rules of Civil Procedure.
Wortzman Nickle is pleased to announce Rachael Chadwick is joining us as a Senior E-Discovery Analyst and Project Manager. Rachael comes to us after years of experience as a Law Clerk whose practice focused on e-discovery.
Rachael arrived just in time. January 2010 has started off with a bang! 2010 is the year for lawyers, in-house counsel and organizations to embrace e-discovery. Undoubtedly the new Rules of Civil Procedure that came into force in Ontario effective January 01, 2010 have had some impact on this. We have been busy attending Meet and Confer sessions, meeting with organizations that are anxious to have Records Management Policies in place in the calendar year and meeting with other organizations who want to ensure that they have litigation readiness plans in place. Top that off with several on going e-discovery review projects and we are off to an exciting start this year. The addition of Rachael to our team adds to our office strength and the breadth of our e-discovery experience.
Wortzman Nickle are off to LegalTech this week..stay tuned for updates!
