Law Times

Page 8 December 5, 2016 • Law Times www.lawtimesnews.com Patchwork approach across jurisdictions Group seeks to harmonize Canada's e-discovery rules BY JIM MIDDLEMISS For Law Times B ringing order to Cana- da's byzantine legal sys- tem is no easy task at the best of time for litigators. With federal and provincial laws covering similar topics but often having subtle differences, it can be challenging, particularly so when it comes to things such as evidence acts. Factor in the different court rules of civil procedure among various jurisdictions and the challenge increases exponen- tially. Now, a group of lawyers is hoping to bring a semblance of order to at least one important litigation topic. The Uniform Law Confer- ence of Canada, which was founded in 1918 to harmonize provincial and federal laws, is tackling the tricky issue of elec- tronic discovery. Crystal O'Donnell, CEO of Heuristica Discovery Counsel PC, and Duncan Fraser, vice president and senior legal coun- sel at Wortzmans, are co-chair- ing a group of nine lawyers who have been tasked with doing the heavy lifting of developing pro- posed harmonized court rules for electronic discovery, which could be implemented across Canada. Another advisory group of 11 lawyers is providing support. "One of the biggest challenges right now is the approach across jurisdictions is very ad hoc and patchwork," says O'Donnell, who is also vice chairwoman of the Ontario Bar Association's E-dis- covery Implementation Com- mittee, which promotes thought leadership, best practices and reform with respect to discovery, litigation and paperless court proceedings. "For any organization or corporation dealing with litiga- tion in multiple jurisdictions, the rules are very different and some provinces don't have any rules yet addressing electronic evidence," she says. Fraser adds there are "varying standards of what is relevant for the purposes of civil disclosure." For example, Fraser, also a member of the OBA's EIC, says that in Alberta, for informa- tion to be subject to disclosure, it must be both "relevant and material," while jurisdictions such as the federal court and Saskatchewan rely on relevant as interpreted by the common law. He says in some jurisdictions the definition can be "restrictive." The idea to develop a uniform set of rules through the ULCC arose in January 2016, O'Donnell explains, and a proposal was sent in April, marshalled by Peter Lown, director of the Alberta Law Reform Institute. In August, the ULCC ap- proved the initiative at its annual conference. This effort is just the latest in- volving e-discovery. For example, O'Donnell and Fraser are both involved in the Sedona Canada Working Group 7 or WG7, whose mission is to "create forward-looking prin- ciples and best-practice recom- mendations for lawyers, courts, businesses and others who regu- larly confront e-discovery issues in Canada." The Sedona Canada Prin- ciples have become a corner- stone to the development of e-discovery in Canada and in some jurisdictions, such as On- tario, are the principles that are actually referenced in the Rules of Procedure. That means a fail- ure to follow them is considered a rules breach. Last year, the working group issued the second edition of those principles, building on things such as the test for pro- portionality, using technology to further discovery and devel- oping joint litigation plans. O'Donnell says the ULCC project is an "attempt to further those efforts" and to have "best practices" implemented as a rule in the various jurisdictions. It's about "taking it to the next level," she says. O'Donnell expects it to be a two-year effort and she hopes that by 2018 a set of proposed harmonized rules will be ap- proved that courts or provinces could adopt. It would also provide cor- porations and government de- partments with a template for e-discovery procedures. Right now, the lawyers say, the working group is pulling togeth- er all the relevant information and civil procedure rules of vari- ous provinces and identifying best practices and what works. "[I]t's about taking what is already out there and packing it in a manner that can be harmo- nized across the country," says O'Donnell. "We're not coming up with anything new." Fraser notes a "huge amount of legwork" is required, but the effort is necessary as part of civil justice reform efforts. Discovery can be one of the costliest parts of litigation and impact litiga- tion timelines. Fraser says that litigation used to involve a few banker boxes of information. However, that has exploded in a computer age to millions of digital documents ranging from Word files to emails and PDFs. He says the old rules and prac- tices do not "translate well to larger volumes of information." The lawyers note that elec- tronic information isn't limited to civil litigation. Administrative tribunals and alternative dispute systems must all deal with digital evidence, so a harmonized set of rules will go a long way to advancing the res- olution of disputes across a wide range of adjudicative bodies. "[E]lectronic discovery for many lawyers is not seen as an asset in their litigation; it's some- thing they have to do," says Fra- ser. "It's a cost." LT FOCUS ON E-Discovery Focus Crystal O'Donnell says for those dealing with 'litigation in multiple jurisdictions, the rules are very different and some provinces don't have any rules yet addressing electronic evidence.' Complete the survey online at canadianlawyermag.com/surveys SURVEY IS OPEN UNTIL JANUARY 2 ND THE TOP PRAIRIE LAW FIRMS IT'S TIME TO RANK... Untitled-4 1 2016-11-29 3:04 PM

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