Law Times

Page 12 December 1, 2014 • Law Times www.lawtimesnews.com Lawyers, judges offer up solutions to e-discovery challenges By arshy mann Law Times hile electronic discovery has become an in- creasingly im- portant aspect of civil litiga- tion, judges on both sides of the border are encountering difficulty integrating it into their courtrooms. Conf licts between par- ties on e-discovery issues can drag out cases, costing time and money for both the courts and the litigants. At the Ontario Bar Asso- ciation's E-discovery Institute this fall, Superior Court Mas- ter Donald Short said one of the main issues that come up in dealing with e-discovery is the lack of specialization. "The problem with the bench and the bar is that it's a general- ist bar," he said. "There is at the moment no certified specialist in electronic litigation. Maybe there should be." Short went on to say lawyers shouldn't assume the presiding judge has a deep understanding of the technology that might be at play. "Every time you come in, if it's a computer-related issue, you're going to have to explain metadata one word at a time," he said. Joy Flowers Conti, chief judge of United States Dis- trict Court's western district of Pennsylvania, spoke about how she tackled problems around e-discovery in her court. Conti said that when she first joined the bench 12 years ago, she dealt with a national class action case. Two years into the litigation, it emerged that the company had failed to place a litigation hold on electronically stored documents. "The question became, what do you do when you don't have documents preserved? "How can you see if they can be restored?" she said. Conti realized she needed someone who understood the systems and would be able to communicate with the informa- tion technology departments and present a plan to the court. So she decided to appoint a spe- cial master. Special masters are quasi- judicial officers appointed by U.S. courts to deal with specific issues in a case. Today, the court has a list of litigators competent in e-dis- covery and mediation it can call upon to help deal with e-discov- ery issues in a trial. According to Conti, her court generally calls upon spe- cial masters in two types of situations. The first is if there's an asymmetrical case where one party has a lot more money and litigation experience and the other side isn't very familiar with e-discovery issues. The second situation is for extremely complex cases where she expects there will be signifi- cant conf licts around discovery. Conti said while the parties pay for the special master, the program has been helpful in moving cases through her court and is ultimately cheaper for ev- eryone involved. "The costs are dramatically lower," she said. "They can cut through the is- sues and develop a consensus in less than two hours." Former Superior Court jus- tice Colin Campbell pointed out that a major difference between the U.S. system and Ontario's is that judges south of the border generally manage cases from the beginning to the end. Robert Deane, a partner at Borden Ladner Gervais LLP, said the situation in Canada cre- ates a host of issues for litigants and the courts. "You have to reintroduce the case at each application to a dif- ferent decision-maker, so there's lost time and lost resources in that," he said. Deane suggested one way to solve the issue would be to un- bundle the litigation procedure. "Even though a case is pro- ceeding in court, what is there to stop the parties from agreeing to arbitrate rather than litigate a particular interlocutory issue within that litigation?" Deane said such a model could help to not only resolve e-discovery issues but also other discreet conf licts that come up during a proceeding, such as questions of privilege. He sug- gested arbitrations would be much faster and thereby help avoid the delays that plague the system. "I submit that this would al- low the parties to harness the potential advantages of the arbi- tration model without forgoing the value of judicial resolution of the larger substantive dispute," he said. In Siemens Canada Ltd. v. Sapient Canada Inc., Short sug- gested a similar solution. "Failing an agreement on a Discovery Plan, had the parties in this case agreed at the outset on a neutral, data recovery ex- pert to make the determinations now before me, I believe that, for the most part, matters would have been resolved much more promptly and the case would be much further along than it is," he wrote. Short noted the Rules of Civil Procedure would allow for that kind of appointment. While a handful of such arbi- trations have happened, Deane said that in order for the idea to get off the ground, the judiciary needs to step in. "The proof of concept will re- ally come when a court is asked to enforce an arbitral award on an interlocutory matter that is proceeding in its court," he said. Deane said the concept could fail miserably but noted it's still worth trying. "I don't think many people would say that the present system is so perfect that we shouldn't at least try something," he said. LT FOCUS WHERE GREAT BUSINESS LAW OPPORTUNITIES AWAIT Market your services I Find others I Build valuable connections Benefit from a wealth of business law development opportunities in the 2014/2015 Lexpert® CCCA/ACCJE Corporate Counsel Directory and Yearbook, 13 th edition. Order now and save 25% Special price $815 (promo code 65924) Regular price $108ȕ-9$$$" "WBJMBCMFPOTUBOEJOHPSEFS 0GGFSFYQJSFT.BSDI ORDER YOUR COPY TODAY! Visit www.carswell.com or call 1-800-387-5162 NEW EDITION 2014/2015 Lexpert® CCCA/ACCJE CORPORATE COUNSEL DIRECTORY AND YEARBOOK 13 TH EDITION 1VCMJTIFEJODPOKVODUJPOXJUIUIF$BOBEJBO$PSQPSBUF$PVOTFM"TTPDJBUJPO BOETQPOTPSFECZCanadian Lawyer InHouseUIF2014/2015 Lexpert® CCCA/ACCJE Corporate Counsel Directory and Yearbook, 13 th editionHJWFTZPVBDDFTTUPMJTUJOHT PGBQQSPYJNBUFMZ$PSQPSBUF$PVOTFMBDSPTT$BOBEBUIFDPNQBOJFT UIFZSFQSFTFOUBOEJUBGGPSETZPVUIFPQQPSUVOJUJFTUPHSPXZPVSCVTJOFTTCZ CVJMEJOHDPOOFDUJPOT The Lexpert® CCCA/ACCJE Corporate Counsel Directory and Yearbook brings you value through: ȕ the contact information you need to network with thousands of potential new clients across Canada ȕ insight into the legal buying decision-makers representing almost 1,900 corporations across Canada ȕ a trusted name upon which you can build your practice on ȕ a cost-effective and time-saving way to market your services ȕ feature articles about legal and business issues facing Corporate Counsel to assist you in building deeper connections Untitled-5 1 2014-11-26 9:34 AM W Unbundling the litigation procedure to let parties arbitrate interlocutory matters may help resolve dis- covery issues and reduce delays, says Robert Deane.

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