Law Times

Law Times • may 17, 2010 FOCUS PAGE 13 ing a new reality of modern liti- gation. But as the market races to provide tools and expertise to meet the new requirements, they do have options to help them adjust. Although the new Rules have been out there for some time, many litigators are still reluctant to embrace electronic discovery. David Outerbridge of Torys LLP in Toronto believes some lawyers are trying to remain "blissfully ignorant" even though the Rules don't signifi cantly change current practice in many disputes. "It varies considerably from case to case," Outerbridge says. "It is only in complex electronic cases that the Rules make big changes. In simpler cases, people are largely agreeing to do what they did before." Nevertheless, Outerbridge be- lieves the new Rules will slowly change things. "Th e e-aspect of a case is no longer the exception. It's the rule. Everyone has got e- mail. Th e reality is that people are forced to look at the e-aspect." One of the rule changes that has a particular impact is the di- rection for lawyers to consider the 12 Sedona Canada principles, a set of guidelines and best prac- tices for doing e-discovery. "Th e Ontario Rules are unique in that they specifi cally consider the Se- dona Canada principles," says Outerbridge. "I expect they'll be fi nding their way into case law." Coming into this new approach, the biggest practical change is the need to agree to a discovery plan. "Masters and judges can take it into account when deciding whether to grant a motion," Outerbridge notes. "If someone's unreasonable in New Rules mean new reality for e-discovery W BY JUDY VAN RHIJN For Law Times ith revised Rules of Civil Procedure in place, lawyers are fac- negotiating a discovery plan or didn't negotiate a discovery plan, they will not be given the motion relief they want." Th e problem so far has been that nobody has known what a discovery plan should look like. "Everyone's waiting for a judge or master to issue a decision that articulates what you are required to do and the consequences if you don't," says Outerbridge. "Th ere's no form and no prec- edent except for a short list in the Rules, so the e-discovery im- plementation committee of the Ontario Bar Association recently put out model discovery plans on the OBA web site. Th ere is a short form, which is the bare bones required by the Rules, and a long form which provides a more detailed template as well as a checklist. We don't know yet whether it will have a signifi cant impact on discovery practices. We do know that many people at conferences were eagerly ask- ing when it would be released." Susan Wortzman of Wortz- man Nickle Professional Corp. has found discovery plans are ranging from simple letters to formal agreements. "People are starting from scratch," she notes. "Th eir plans can be very simple or very complex. A plan in let- ter form can say, 'We've agreed to these fi ve points,' and in many cases it should be just that simple. In a complex case where you are presenting e-evidence, it's more appropriate to produce a length- ier document." Wortzman believes the need for making a discovery plan ear- ly on is making a real diff erence to how lawyers are approaching their matters. "Most counsel are starting to think about their case and documents earlier," she says. "Clients are accepting that they are required to meet very early. Doing it later doesn't fl y anymore." Subscribe to Law Times Why pay extra for your legal news? Cutting-edge legal affairs, news and commentary for just 44¢ a day! Make the time for Law Times and keep up with all the developments in Ontario's legal scene. Subscribe today and receive: • Unlimited access to the Law Times digital editions and to our digital edition archives...FREE • Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer...FREE ORDER your copy today Looseleaf & binder • $210 Releases invoiced separately (1/yr) P/C 0283030000 • ISSN 1920-1737 tug and pull between the sides. However, parties are accepting they have to take proportional- ity into account. Counsel can't ignore that they may get into discussions about it. I haven't seen a lot of motions regarding proportionality but I expect we'll see some decisions on it in the future." Th e only case to date on the 'The Ontario Rules are unique in that they specifically consider the Sedona Canada principles,' says David Outerbridge. While Wortzman is reluctant to describe the new regime as front-end loading the case, she does agree that more of the work needs to happen earlier on. "In the long term, it makes the pro- cess more effi cient and eff ective." Another major change is the explicit inclusion of the concept of proportionality in the Rules. When it comes to e-discovery, Outerbridge says the proportion- ality notion refers to the volume of documents and also whether par- ties are required to retrieve materi- als that are harder to obtain, such as backup tapes. "Th ere is a great deal of variation in proportional- ity," says Outerbridge, comparing what would be appropriate in a $50-million case as opposed to a $500 matter. "It depends on the side of the case you're on. If you're the one seeking documents, you think they're all critical, but the other side will say, 'Th at's not proportional.' Th ere's always a new proportionality rule came on Feb. 4 from Superior Court Mas- ter Donald Short in Moosa v. Hill Property Management Group Inc. Short considered the impact of the enhanced general principle in Rule 1.04(1) and said, "I do not regard the mandate of the new Rules to be 'more of the same.'" He then talked of the court's duty to reduce delay and ensure prog- ress towards an "equality of arms." He also articulated the consid- erations listed in Rule 31.05.1 relating to extensions for oral dis- covery and considered them to be useful for the purpose of consid- ering proportionality in costs. Given the overall lack of ju- dicial guidance at this point, the question remains as to whether the new rule will increase out- sourcing of e-discovery functions. But Outerbridge isn't sure that the rule itself will do that. "Firms are building up their internal re- sources, and e-discovery technol- ogy is becoming more popular. Torys has its own internal capac- ity to process e-documents with- out outside third-party assistance if the case is of the right size." Outerbridge has noticed a big move towards litigation-support software and sees many products making their way to the Ontario market. "Th ere is a big focus on that culling software that will fi lter the data set down signifi cantly before anyone looks at it. It can get rid of the duplicates or, if you want documents that are 92-per-cent or more similar, it will bring them up with the diff erences highlight- ed so that you don't have to review the whole document — just the black-line changes." Other fea- tures of the software can remove operating-system fi les and fi lter out junk while searching by date, author or domain name. As an outsource provider, Wortzman can say Janu- ary, February, and March were extremely busy months. "I have wondered if it was caused by the new rule or just that it's a new year when fi rms have new budgets to spend," she says, adding she has observed that a lot of compa- nies still turn to outsourcing for their software. "With software, everything changes so quickly. Law fi rms often ask us to do an analysis of the software, and it's really diffi cult. Th e fi nancial in- vestment and training investment is so huge for law fi rms that they prefer to use a third-party web hoster or licensing arrangements or other solution. Our fi rm uses the best software at any given time. We may be using fi ve or six diff erent web-hosted solutions that suit the particular cases we're working on." One factor that may keep everyone reasonable and costs under control is the new con- cept of cost-sharing. If a party asks for a hard-to-get docu- ment, they'll have to cough up to produce it. Th at small idea may be what makes the whole regime workable. LT Electronic Documents Records Management, e-Discovery and Trial Effectively navigate the legal challenges posed by electronic documents Electronic data is modifying how lawyers interact, changing how information is collected and used, and transforming the courtrooms. This in-depth resource examines and analyzes the issues relating to electronic documents, including: • the sources and types of electronic documents • records management policies • the legal framework governing e-discovery in Canada • the preservation, collection, processing, review and production of electronic documents • the use of electronic evidence at trial This dynamic and burgeoning aspect of legal practice is clarified and explained with extensive reference to relevant Canadian and U.S. authorities. LT0517 For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. FINLAY_Electronic Documents (LT 1-4x3).indd 1 www.lawtimesnews.com LT Sub ad - 1-8-2X.indd 1 4/6/10 4:13:15 PM 5/12/10 8:55:31 AM Go to: www .lawtimesnews.com to subscribe today! Includes a FREE digital edition! Beat the HST! Subscribe before July 1st and SAVE! Editors: Bryan Finlay Q.C., Marie- and Michael Statham W ith contributions from: Caroline Abela, Steve Doak, Paul D. Guy, Nikiforos Iatrou, Stephanie L. Turnham, Andrée Vermette David Vitale and John Wilkinson

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