Law Times

Law Times • December 4, 2017 Page 11 www.lawtimesnews.com Communication important for good e-discovery BY DALE SMITH For Law Times W hen it comes to e- discovery, Ontar- io's Rules of Civil Procedure make having a discovery plan manda- tory. Lawyers say that what makes a good discovery plan is good communication and the sense of proportionality to the volume of documents being produced. "The breadth that we take in our approach from the very beginning in discovery plan- ning really has a trickle-down effect on all of the costs going forward," says Molly Reynolds, senior associate with Torys LLP in Toronto. Reynolds says that planning requirement and meeting and conferring with opposing coun- sel that goes along with the plan helps to focus and to think about where relevant data might be. "It is very helpful, even in smaller document cases, but, of course, in large document cases where you might have to be searching across many dif- ferent employees or custodians, [to look at] at many different data sources," she says. She also says that it's also useful to think about what to do if that particu- lar search pattern is wrong. "Build in the opportunity to come back and discuss when what you thought was propor- tionate and reasonable at the outset [and then it] turns out that it's not," says Reynolds. She says that, because older rules around producing all rel- evant documents pre-date the era of email, when hundreds of documents are generated in the course of a day with multiple versions, plans between oppos- ing counsel are useful to help narrow down who the key wit- nesses and holders of informa- tion may be. Reynolds says it can also be beneficial if counsel can look at the files of those key individu- als before agreeing to look at all emails of everyone in the organi- zation. That could mean focus- ing in on time periods identified in the pleadings and narrowing in on documents where the tim- ing is relevant. The technological expertise of counsel when it comes to do- ing e-discovery can have an ef- fect on the planning process, says Marlon Hylton, manager of discovery management with Cassels Brock & Blackwell LLP in Toronto. "A big part of it is the bar still catching up with the nu- ances of discovery plans." Hylton says that unless coun- sel understands the nature of the documents in question, which can include things such as em- bedded reports, it can create an onerous burden to those trying to collect it. "For a discovery plan to be good, it requires a shift in think- ing," says Hylton, [such as] "a much earlier contemplation of what is it that we have that's rel- evant to the issues in this case — what format is it in, where does it reside in our client's IT infra- structure — because all of that will determine what we have to do to get it." Hylton says that lawyers should remember to include things such as privilege clawback provisions so that, if a privileged document slips through the cracks, the discovery plan is a great place to deal with the issue. "It surprises me how many people don't," Hylton says of in- cluding such provisions. In many cases, the volume of data means that external service providers are necessary, which can go to the collection stage if there's a sizeable enough vol- ume or if it's of an unusual file type that needs additional help in extracting and restoring it, all of which adds to the expense of the discovery process. The costs associated with the discovery process can affect the ability for a case to settle, Reynolds adds. "[The parties involved] may feel like they've put so much in the litigation that they may not want to compromise at a lower amount." Reynolds says that, when looking at the key files or date ranges first, it doesn't mean that they can't go back to search for other documents. She points to a fictional example of litigation over a contract signed in 2008 but the breach-of-contract litiga- tion didn't occur until 2015. "Just because a contract was signed in 2008 doesn't neces- sarily mean that we're search- ing the organization's files for anything related to the contract from 2008 to 2017 — we may just need to start at 2015 or shortly before and figure out what went wrong," she says. Honing in on specific time periods allows for fewer docu- ments to be produced from the outset, Reynolds says, which is a cost savings. "If we collect everybody's emails for an extremely long pe- riod of time, we have to figure out how we're going to ingest that data," she says. Deciding what to do with the information not needed also needs to be determined in the event that they do need to go back to it. Reynolds says that over-collecting at the outset af- fects how much they need to process and store, which adds to expense. Reynolds warns about some plans that try to create carve-outs that say that nothing in the plan changes an obliga- tion to produce. "It's almost useless to have a discovery plan that doesn't change your obligation to pro- duce everything relevant, because then you have no proportionality agreement," says Reynolds. The mandatory nature of Rule 29.1, which requires a dis- covery plan be filed lest the ac- tion grind to a halt, is something that does have its critics in the legal community. "When it came out, it was well-intentioned," says Peter Carey, partner with Loopstra Nixon LLP in Toronto. "It's trying to deal with prob- lems on a prospective basis that might come up, but in prac- tice, far too often, it becomes a method by which a party that is interested in delay can delay an action for months by refusing to use a discovery plan." Carey says the rule is fre- quently abused, and when he was on the executive of the Ontario Bar Association civil litigation section, there was almost univer- sal feeling that the rule should be rescinded, with some who want- ed the rule modified, without agreement on how to do so. "One hundred per cent of lawyers contacted did not like the state of Rule 29.1," says Carey. "In my view, it injects a level of tactical manoeuvring that wasn't previously present in the entire litigation process." Carey says the bulk of cases don't require plans because they are simply not big enough and don't require another level of conf lict into the process. Reynolds says she remains in favour of the mandatory rule because it creates a procedural stage where counsel has to come together and communicate, which works well in most cases. Where it falls apart is in the odd case where counsel simply sends a plan to the other for review, which is why Reynolds prefers a face-to-face meeting. "Having these conversations proactively at the outset allows us to hopefully avoid motions, complaints and disputes down the road when the documents produced were not what the other side was expecting," says Reynolds. "If it wasn't mandatory, in those unusual cases where you don't have a constructive relation- ship between parties, we would lose that opportunity entirely." Hylton agrees that the rule is useful and while it may require some tweaks, it would be impru- dent to get rid of it entirely. "While the rule is manda- tory, it requires a shift in the way we think about our cases, and not many people are prepared to recognize that the shift is neces- sary for the rule to make sense," says Hylton. "That's going to take time." LT FOCUS If we collect everybody's emails for an extremely long period of time, we have to figure out how we're going to ingest that data. Molly Reynolds Marlon Hylton says the technological expertise of counsel when it comes to doing e-discovery can have an effect on the planning process. In-class and online programs recognized by Law Societies Executive Education to Navigate the Canadian Legal Landscape Visit Lexpert.ca to find out more Complete the survey online at canadianlawyermag.com/surveys and make your picks. It's time to rank… THE TOP 10 QUEBEC REGIONAL FIRMS SURVEY IS OPEN NOVEMBER 27TH - DECEMBER 29TH Untitled-6 1 2017-11-20 9:06 AM

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