Law Times

PAGE 2 NEWS OctOber 25, 2010 • Law times Proportionality puts new IT expectations on lawyers Clients could face cost orders for excessive discovery requests, judge says BY MICHAEL McKIERNAN Law Times nology infrastructure to keep civil litigation proceedings pro- portional in the electronic age, an expert on e-discovery says. Susan Nickle, a lawyer with L e-discovery law fi rm Wortzman Nickle Professional Corp., told an audience at the Under- standing Proportionality edu- cational session in Toronto last week that counsel must probe their clients early in the process to fi nd out how and where they store electronic information and how easy it is to retrieve. "Th e role of counsel has changed," she said. "We need to really understand our clients in a way we never did before. You don't need to be a foren- sic expert but you do need to know how to ask meaningful questions about where clients store information." Otherwise, she noted, law- yers risk exposing clients to discovery obligations they're unable to meet due to either technical defi ciencies or the in- ordinate cost of producing cer- tain kinds of information. Having a strong awareness of a client's IT capabilities can also help counsel recognize and fend off outrageous discovery requests from opponents, said Nickle. For those lacking in technical knowledge, they need to bring in an expert because ultimately "you're going to be the one that faces the wrath awyers need to have a solid grasp of their cli- ents' information tech- of the court" should something go wrong, she added. "We need to be project manag- ers to a certain extent. Few of us expected that or wanted it, but we need to be knowl- edgeable enough to be able to direct the pro- cess or bring in some- one who is knowl- edgeable enough." Master Calum MacLeod of the On- tario Superior Court said the e-discovery process has the po- tential to cost corpo- rations millions of dollars, which means counsel can save cli- ents a lot of money if they come to court armed with informa- tion about the implications of particular requests. He spoke of one discovery order that went through motions court on consent where the party only realized after producing the documents that it would cost $500,000. Th e order would never have been granted had that been known at the outset, MacLeod said. "Often, the per- son who is instructing counsel on behalf of the client doesn't know how much it will cost because they don't understand their IT infrastructure and they have no idea how much it will cost to produce information. Th ey're shooting in the dark." Kelly Friedman, a partner at exists — that smok- ing gun where they admit everything. It might be dispropor- tionate to get at that piece of evidence, and you might not ever get it." According to Master Calum MacLeod, Susan Nickle, and Kelly Friedman speak at a panel discussion on proportionality in e-discovery in downtown Toronto last week. despite her own fear of technol- ogy, she has developed enough of an understanding of IT prac- tices to serve as the interpreter between the technical and legal departments at corporate cli- ents. In her view, problems are most likely to occur when law- yers fail to make the two depart- ments understand each other. For example, one client Ogilvy Renault LLP and chair- woman of the steering commit- tee of Sedona Canada, said that got itself into trouble when it couldn't produce requested documents. Th e problem hap- pened because the legal depart- ment had asked IT colleagues to make sure records were pre- served when the prospect of litigation appeared on the ho- rizon. Th e IT manager backed up all of the data up to that point when in fact the in-house counsel had wanted every- thing saved going forward. "I am never going to understand what goes on inside that little box but I'm able to understand when there's a miscommunica- tion," Friedman said. She noted the concept of proportionality in the new Rules of Civil Procedure forces lawyers to focus on what they really need in order to prove their cases at a very early stage. As a result, they can no longer demand every conceivably rel- evant piece of documentation in order to trawl through reams of evidence to fi nd the real nug- gets of useful information for the case. "Th e idea behind propor- tionality in this world of vast amounts of information is to produce only the golden nug- gets," she said. "We've got to get away from the idea that in order to prove my case, I've got to get that one e-mail that I'm sure Key Developments in Estates and Trusts Law in Ontario 2010 Edition Melanie A. 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But ac- cording to Nickle, the uptake has been spotty as parties have simply ignored the requirement in many cases. She sees it as a missed opportunity to move matters along and limit costs. As a result, she advises lawyers to be open with opposing coun- sel about barriers to discovery. "Th ere's no point in hiding the fact your client has a bunch of old systems that may not be recoverable. It won't serve you well for that to come out dur- ing discoveries. It's one of the key areas where we can save our clients money and time because we're really narrowing the issues down to what we need." MacLeod, who sits in mo- tions court in Ottawa, has so far heard very few arguments relat- ed to proportionality at discov- ery. While the cost of an action compared to the total amount at issue is the most obvious fac- tor, he said it shouldn't be the only one in considering whether it's proportionate. Disclosure of large amounts of third-party personal information is also a non-fi nancial cost that should come into play, MacLeod noted. In his view, a serious allegation of conspiracy may require more disclosure than a narrower issue, for example, even if the amount at stake is less. MacLeod also expects judges to look retrospectively at the proportionality in discovery when deciding costs at the end of a case. As a result, they may refuse to award costs for dis- bursements they deem dispro- portionate or could punish par- ties for imposing discovery that was completely useless at trial. "Th e risk of having to bear canadalawbook.ca For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book, a Thomson Reuters business. Prices subject to change without notice, to applicable taxes and shipping & handling. LT1025 www.lawtimesnews.com the cost you impose on the other side is a very real risk, so there's a real incentive to sit down and talk with the other side about doing things in the most cost-eff ective way," MacLeod said. LT b ay Mr t b t b y Sus an Sl b ... and mor e! . Jusy aul J. Gibne e D avid M. Br tic y M. Jasmine Swe y R b own ery Pobin G b a oodman tha McC tman y and Mark y Mar A . Barbour ar th y and He a ther Hansen Photo: Michael McKiernan

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