Law Times

PAGE 10 FOCUS May 25, 2009 • Law TiMes Prepping the law firm for e-discovery BY JUDY VAN RHIJN For Law Times increasingly less optional. A new Rule of Civil Procedure T is on the horizon (launching on Jan. 1, 2010) that requires coun- sel to have regard to the Sedona Canada Principles, which reflect legal principles and best practic- es. Although this is aimed at cli- ents' matters, it's important that law firms get their own houses in order in case of a claim against the firm. The time and cost in- volved in setting up appropriate systems within the firm can then become experiential capital for your clients. Norman Letalik, a partner in Borden Ladner Gervais LLP's Toronto office, believes that even without the new Rule, litigators must turn their minds to dealing with e-discovery. "E- discovery is an issue endemic for all litigation. Statistics say that 90 per cent of information is electronic these days." Dominic Jaar, the president of Ledjit Consulting Inc. in Montreal, believes that in a few years we won't be talking about he question of whether to turn your mind to e-discovery is becoming e-discovery as distinct from dis- covery in general, and that third- party vendors of e-discovery ser- vices will become obsolete. "In the paper era, there was no one specializing in going on-site and picking up paper for discovery. More people are computer savvy these days. In a few years the cus- todians should be able to retrieve the documents themselves." At present, however, he notes the lawyers attending his weekly conferences on e-discovery are 90-per-cent in-house, and only 10 per cent of outside coun- sel, showing a worrying lack of interest in the bar as a whole. David Outerbridge, counsel at Torys LLP in Toronto, who is chairman of the Ontario e- discovery implementation com- mittee, believes the new Rule will cause more lawyers to turn their minds to e-discovery require- ments. "Technically the Rules as they stand require discovery and production of 'documents' which are defined to include electronic documents. This specific direc- tive will focus people's attention, particularly on the requirement that parties enter into a discov- ery plan. Another Rule amend- ment provides that parties can't get discovery relief until they have Trust [ Aleks Mladenovic | Letalik agrees that if lawyers Norman Letalik believes that even without the new Rule, litigators must turn their minds to dealing with e-discovery. consulted e-discovery principles and made a discovery plan." The first steps for a firm that wants to be proactive involve more time than money. "Law firms that haven't been doing e-discovery need to learn more about the process," advises Out- erbridge. "They should start by reading the Sedona principles and Rule amendments and other material. A number of concepts may not be first nature to law firms, such as the requirement to meet and confer in advance at a discovery conference." want to get up to speed, there is no lack of conferences and pub- lished articles available. "Like all areas of law, it is important to know what the law is and have the experiential factor." Letalik also states that there needs to be a conversation between the IT department and the key players who typically have relevant doc- umentation. "The unfortunate reality is that while lawyers have a good rapport with people, they don't speak the same language as the folks in IT because they rarely communicate with them. If the discussion is done in the proper way, a whole lot of grief can be put to the side." When designing the firm's plan, policies, and precedents, the litigators may wish to refer to the eight model e-discovery precedents recently published by the OEIC. "The precedents are designed to give a helping hand whether you use them as a direct precedent or food for thought," says Outerbridge. "For example, the sample discovery agreement could serve as a discovery plan. The discovery memo can be sent by a lawyer to a client advising what's required for preserving and collecting e-documents. There is also an extensive educa- tion checklist that teaches law- yers what to keep in mind from start to finish, how to undertake each step and how to keep costs down at the various stages." After this self-education pro- Every time you refer a client to our firm, you're putting your reputation on the line. It's all about trust well placed. cess, firms will probably want to consider some software to help them tackle the daunting task of collecting, preserving, and copy- ing the documentation. Most software vendors will meet with law firms free of charge, and the process of assessing their products is expertise that can be offered to clients when they consider their own software purchases. However, this is not an exercise that can be done just once. "Ven- dors are a moving target," says Letalik. "The people who work for these companies are highly mobile. Key personnel defect and form their own companies and they are always merging and con- solidating. You have to keep your eyes and ears open." At this point, most firms will select some intelligent search software that culls by electronic searches so as to cut down the biggest cost of discovery — the human review of documents. "At some stage, a real person has to look at them to redact the infor- mation that is privileged or not relevant," says Letalik. "If you can winnow it down to something manageable at the front end, it saves a huge amount of money." Susan Wortzman, the founder of Wortzman Nickle Professional Corp., says that people make mis- takes in purchasing software when they concentrate on the back end of the process. "They buy software for managing litigation that offers transcripts, notes, highlights, and briefs for experts, but litigation support software is not a good review tool. It is a very expensive and time-consuming tool that is too complicated for e-discovery. Some products that law firms love to use crash with big cases. If you have one million entries, you just can't use it. For review tools you need a simple interface that is user friendly." Wortzman likes an interface on which two-thirds of the screen shows the document you're reviewing while the other third shows the flags for relevancy and privilege. Examples of software that anyone can buy are Summa- tion, Ringtail, and Concor- dance. There is also proprietary software with very specific func- tionality developed by firms like Ernst & Young, KPMG LLP, and H&A Forensic Account- ing. They offer features such as a built-in translation program and highlighting functions. Outerbridge's final advice is that every firm should have a designated person to keep up to speed on software options and case law. "Someone needs to know the questions to ask." LT Ball&Alexander Richard Halpern | Sloan Mandel For over 70 years Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. THOMSON, ROGERS Barristers and Solicitors 416-868-3100 Toll free 1-888-223-0448 www.thomsonrogers.com YOUR ADVANTAGE, in and out of the courtroom Excellence in Employment & Labour Law • Counsel in Leading Cases • • Authors of Leading Text • Wrongful Dismissal Employment Class Actions Labour Relations Employment Law Human Rights Post Employment Competition Civil Litigation Appellate Advocacy Employment Standards Disability 82 Scollard Street, Toronto, Canada, M5R 1G2 Phone: (416) 921-7997 Fax: (416) 921-3662 web: www.staceyball.com www.kenalexander.ca Untitled-1 1 www.lawtimesnews.com 5/19/09 11:47:00 AM all_LT_May25_09.indd 1 5/20/09 3:13:35 PM all & Alexander Barristers & Solicito rs Solicitors

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