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Page 4 March 23, 2015 • Law Times www.lawtimesnews.com services, Sondhi says Deloitte informed lawyers they weren't doing legal work and, as a result, they didn't need insurance for it. Given her concerns with De- loitte's position, Sondhi com- plained to the law society. But its response surprised her. "I re- ceived a letter back from them saying that what I was doing wasn't legal work," says Sondhi, who notes her work at Deloitte, as with her previous jobs at ATD and another document review company, involved reviewing documents to determine wheth- er they were relevant, what is- sues they were relevant to, and if they were subject to privilege. "In certain cases, you had to determine what kind of privi- lege it was, whether it was solic- itor-client privilege or litigation privilege," says Sondhi. "So we weren't just searching for key- words; we were searching for relevance and privilege." Sondhi says the law so- ciety told her the work fell within a "narrow exception." She notes it hasn't responded to her queries about what that narrow exception entails. "I don't understand how they came to that conclusion and they didn't explain it in the deci- sion to me," she adds. "So whether or not [docu- ment review] is legal services, as far as I understand, is still an outstanding issue because the law society hasn't issued an of- ficial statement." Sources say the law society is also looking into lawyers who do document review work at Epiq Systems Inc., but the com- pany declined to comment. Sources also say some lawyers have stopped or suspended their work at the company in light of the law society developments. For its part, Deloitte says it stands by its position that its lawyers aren't doing legal work. "Our practice uses leading tech- nology and a multidisciplinary team of professionals that in- clude accountants, former police officers, technology specialists, and lawyers to preserve, collect, identify, review, analyze, and produce documents," Deloitte said in a statement to Law Times. "Deloitte's clients for docu- ment review and discovery are law firms and in-house counsel, and they practise law and make legal judgments. Deloitte sup- ports them with document re- viewers who work under their direction and supervision. The process is carefully managed so that neither Deloitte, nor its em- ployees or contractors are prac- tising law." Deloitte is facing a $384-mil- lion class action on behalf of lawyers who worked at ATD. Sondhi, a representative of the class, alleges Deloitte and ATD saved millions in payroll deduc- tions and benefits by misclassi- fying employees as independent contractors who are exempt from certain protections under the Employment Standards Act. The cases will also deal with the question of whether the lawyers were providing legal services. None of the allegations have been proven in court. In the meantime, the profes- sion itself has divided opinions on whether document review constitutes legal work. Susan Wortzman of the law firm Wortzmans says that in general, document review con- ducted by lawyers constitutes legal work. "The document review that Wortzmans typically does in- volves making assessments of relevance, privilege, significance, and maybe classifying docu- ments by issues," she says. "And in those cases, I believe what we're doing is legal work. In those cases, what we have are lawyers exercising or using their legal judgments to make deter- minations as to whether par- ticular records are relevant and/ or producible in litigation. So in my view, that's legal work." But Martin Felsky, Borden Ladner Gervais LLP's national electronic discovery counsel, isn't sure reviewing documents for relevance constitutes legal work in every case. "Relevance can often be a factual thing. Whether or not a document gets produced, that's a legal decision," he says. "If I say, 'Look, I've got a mil- lion documents and I need somebody to go through them and find everything relevant to the newspaper business,' you don't have to be a lawyer to do that. It's got nothing to do with being a lawyer. It has to do with being somebody who can read and understand the language and can say, 'OK, you know what? This document has some- thing to do with newspapers.'" He adds: "It's not a matter of searching. It's matter of reading the material and understanding the content, but that's not a legal decision." The bigger question is what employers are asking review- ers to do, according to Felsky. If they're asking them to deter- mine whether a document is important, that's something that involves legal judgment, he says. "That's part of the strategy of the case." Even if companies are em- ploying lawyers who make de- cisions using their legal knowl- edge, those who have hired them can't rely on that legal opinion, according to Felsky. "I can't hand that over to the client because it's not really an opinion of the lawyers. It's an opinion of the company and a company cannot have a legal opinion." LT NEWS X 2015 BENCHER ELECTION TANYA WALKER Experience will contribute to change. www.tcwalkerlawyers.com/bencher • Access to the Profession Efficiencies in the Judicial System • Fiscal Prudence • Diversity My focus is on raising new solutions to existing and emerging issues: Untitled-3 1 2015-03-10 2:08 PM Profession divided on whether document review is legal work Continued from page 1 Cader, a lecturer at the University of Windsor, scoffs at the govern- ment's argument that it wants to ban the niqab at the oath-swearing portion of the ceremony in order to protect women. "What does it mean for a government that has explicitly refused to investigate the murders and disappearances of thousands, literally thousands, of aboriginal women in Canada . . . to now say we are so concerned about violence against Muslim women?" she asks. "These claims are being used to actually obscure violence against indigenous women," says Cader. "So as a Muslim woman and as someone who is deeply committed to social justice across communities, I will not stand for the use of my body or my community to negate the violence that is actually hap- pening in this country." The association has formally existed since the fall of 2013. Many of its members are young with the majority of them just a few years out of law school. For an association with such a specific membership — Canadian Muslim women lawyers — it has had a lot on its plate. The association's members help each other with things like job searches and they also do external work that has included making submissions to the Law Society of Upper Canada on issues that are relevant to them and other equity-seeking groups. One of those submissions was about the need for the law soci- ety to reconsider its own rules for law students taking the licensing exams. Previously, students wearing hijabs or "religious attire of any kind" couldn't take the exam without some type of exemption under the same rules that prohibit personal items like hats and winter coats. The law society has since changed the rules to provide for a general exception for religious attire. Some Muslim students opposed the previous requirement for an exemption because it was onerous or potentially humiliating to ask for one. But Cader says the barrier was more psychological. "You're reminded going into this space that you are different and there is this whole structure that has to be created around you even for practices that are very much a part of your daily life," she says. Another of the association's submissions to the law society dealt with the regulator's report on issues faced by racialized licensees. Articling student Sofia Ijaz, who spearheaded that submission, says the association's membership includes women of various ethnic and linguistic backgrounds. In the submission, the group advocated for mandatory collection of law firm diversity data that shows not just the composition of employees but their positions as well. In addition to breaking barriers to access to justice for individual Muslim women, Toronto lawyer Imtenan Abd-El-Razik says the as- sociation is also a vehicle for people to speak for themselves. It's about "being in a conversation where we're always the topic but we're never a part of the conversation," says Abd-El-Razik. LT Continued from page 1 Group seeks to be 'part of the conversation'

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