Wortzman Nickle at North America’s Largest e-Discovery Conference!

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!

Effective Records Management – Part 2

Part one of this series considered the current state of affairs that businesses in Canada find themselves with respect to managing records. This part outlines the steps involved in implementing a practical records management program.

The basic steps involved in developing a practical strategy that will be used by an organization’s employees are:

1. Assess the way records are currently managed.

2. Report findings and recommendations.

3. Draft policies and classification/retention plans that suit the organization’s records management culture.

4. Carry out a strategic planning session to determine how to implement the recommendations/create the implementation plan.

5. Implement the plan.

6. Train staff.

7. Audit and evaluate the records management program on a regular basis.

Assess the Way Records are Currently Managed

Every organization is different. Within each organization, business units, groups, and individuals all have their own ways of dealing with the vast amounts of information that pass their desk on a daily basis.

To interest people in managing records differently than they do now, the solution must satisfy the principle of local value. In other words, what they get out of the solution must exceed what they put into it. People have limited time, limited energy and limited enthusiasm. If they have to spend more time managing records, they must stop doing something else. The value it delivers must exceed what people have to put into it. Otherwise they will not bother.

Implementing an enterprise wide records management strategy is a change process. To be successful, we need to change attitudes and workflows and tools. People need to change how they see records from a personal attribute to a collective, from a source of personal power to a source of company power, and from something acquired in the classroom to something acquired every day through work. If people can understand this with their heads and grasp it in their hearts, then the change will be successful.

As this is a very personal equation, it is imperative that a clear understanding of how people are managing records is known. The only way to accomplish this is to speak to the people in the trenches. In our experience, this is most effective when the interviewer is from outside the organization – employees are less inhibited and more candid when there is no perceived threat of being singled out for “not following the rules”.

Part 3 of this series will delve into developing an effective records management strategy.

Wortzman Nickle’s Training Sessions – Now Accredited by LSUC

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.

Live From Applied Discovery’s “Understanding Proportionality”

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.

Caskey on Proportionality and the New Ontario Discovery Rules

Amendments to the Ontario Rules of Civil Procedure came into effect on January 1st, 2010. Since January 1, 2010 Wortzman Nickle has been busy attending Meet and Confer sessions with our clients and advising them on discovery plans. 

Most importantly, Ontario has now formally adopted the principle of “Proportionality” and if all goes as planned, the culture of litigation in Ontario will be changing as well. 

The new Ontario Rules adopt the Sedona Canada Principles and require the parties to agree upon a “Discovery Plan” (Rule 29.1.03) which includes the scope of discovery, timing for delivery of each party’s affidavit of documents, information with respect to the costs and manner for production, names of the persons who will be produced  and any other information that will facilitate an expeditious, cost–effective discovery and ensure that the process is “proportionate” to the importance and complexity of the action. 

Rule 1.04(1.1) will give judges the mandate to “make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved”. The new Rules further entrench “Proportionality” into the discovery process by providing the court with guidelines to consider when deciding whether a party must answer a question or produce a document (Rules 29.2.03): 

The Supreme Court of Canada recently considered the principle of proportionality in Marcotte v. Longueil (City), 2009 SCC 43 (CanLII). Although the decision deals with a class action case in Quebec, the majority of the Court affirmed that the principle of proportionality confers a real power on the courts, and is not just limited to a principle of interpretation. The Supreme Court further held that proportionality is a valuable source of the courts’ power to intervene in case management to ensure that the litigation is consistent with the principles of good faith and balance between litigants.  

The courts have always had the discretion to either expand or restrict discovery and production. (See the recent decision of Justice Cullity in Pearson v. Inco Limited, 2009 CanLII 37928 (On S.C.).) The new Ontario Rules, however, charge the courts with a more active role. 

Lawyers beware – the days of the “document dump” are over. Similarly, the days of making unreasonable production requests are over. The new Ontario Rules require counsel to co-operate and work together to come up with a Discovery Plan.  If they are unable to do so, the courts will intervene and apply the principle of proportionality in order to ensure that actions are not extended for years unnecessarily thereby increasing costs astronomically.  

If you require assistance with your Discovery Plan, contact Wortzman Nickle.