The e-discovery shift
- Subtitle: InHouse's first e-discovery roundtable
The topics discussed around the table included the areas of proportionality, privacy, cross-border litigation, and the ways in which legal departments manage e-discovery. Here are some excerpts from the lively debate.
• Justice Colin L. Campbell, Ontario Superior Court of Justice
• Alan D’Silva, partner, Stikeman Elliott LLP
• Kelly Friedman, partner, Ogilvy Renault LLP and chairwoman of Sedona Canada.
• Laurie MacFarlane, senior counsel, litigation, CIBC Legal Department
• Melanie Schweizer, senior counsel, Bell Canada
THE CHALLENGES OF PROPORTIONALITY
MELANIE SCHWEIZER: For me . . . one of the questions is at what point in the litigation should that discussion arise, and I tie it a lot to the meet and confer because I think the time to have the proportionality debate is at the meet and confer stage. Once you’ve produced the documents and you are arguing about whether you over or under-produced but at that point, I see, as in-house counsel, one of the challenges . . . is convincing outside counsel it is a valuable exercise to meet and confer early in the litigation, because it goes against normal litigation strategy instinct to have that. So would collaborative discussion early on in the litigation, but as in-house counsel, that is when you want it to happen. You want to have some assurance when you are investing this money in doing e-discovery process and doing an exhaustive one, that your opponent is going to be doing the same thing, and you have a meeting of the minds on these issues before you engage further.
LAURIE MACFARLANE: Lawyers have to have a different mindset of proportionality, making strategic decisions at the beginning of the case and not just saying, I need to see every single document that might be within the universe of documents. What are you going to do when you get those documents? What are the key issues in the case? What key issues are related to documents and do I really need to see them to advance the interests of my client?
KELLY FRIEDMAN: It is really a cultural change for litigators to make a cost-benefit analysis where the benefit is to the ends of justice as opposed to their particular case or their client’s interests alone, and that is going to be the biggest challenge. That is the kind of mental shift that needs to happen amongst opposing counsel.
ALAN D’SILVA: I will add a bit in the context of class actions. I think the proportionality issue is very interesting because the rules talk about proportionality in and the courts taking into account the cost and the time of having to produce a document. So do the Sedona Principles, but on the other hand the Sedona Principles talk about the obligation of preserving electronic documents which may be potentially relevant, to that one step before being relevant. In the typical class action product liability cases or securities case or drug case, you’re dealing with dozens, if not hundreds, of employees who have potentially relevant documents electronically, and typically, we’re spending a lot of time preserving those documents very early in the process and making sure that nothing gets lost. So the question of proportionality, I think, comes later on when you get into the exchanging of those documents.
SCHWEIZER: I think it should come up earlier. As a client, I think class actions is a very good example of a very tough case, because you get a class action and it may appear to be without merit in a case that is clearly not certified, and if it is going to be certified, the discovery phase is never going to arise. So in a case like that, to incur the obligation, and in some cases it is very significant, the cost of just preserving the data, for example, if you’re looking at billing records of hundreds of thousands or millions of customers over a long period of time. But in-house counsel and a company looking at potentially spending millions of dollars preserving data that may not ever end up being relevant, we need to talk about the proportionality issues.
JUSTICE COLIN CAMPBELL: [T]here is, in Ontario and in four other provinces in Canada, and indeed throughout the common law world, an overarching recognition of proportionality. It’s been in the rules forever, but it has now come to the fore as an overarching consideration. While I agree with Alan that perhaps there is a different concept of proportionality that comes at the stage of production, more and more, I’m seeing situations in which decisions have to be made very, very early on.
FRIEDMAN: The reality is that clients like Melanie will force their external counsel to help them make the proportionality decision at the preservation stage, especially in a class action, because there is really no incentive on plaintiff’s counsel in a class action to give any leeway in terms of what should be preserved. I think that the result is that for private practitioners like myself, we have to step up and help our clients make those kinds of decisions. It’s a business risk like any other, informed by case law, legal knowledge, as to what is a reasonable thing to do.
SETTLEMENT VERSUS LITIGATION
FRIEDMAN: I try to tell major corporate clients that is where access to justice comes in for them. . . . Access to justice is getting your case heard on the merits, not paying ransom, not paying $400,000 because you know it is going to cost $1.4 million to do the preservation and production properly, and they are only asking half a million, so pay them off. . . . Whether you have the money to finance litigation or not, you ought to have a right to be heard on the merits and determined on the facts, not on the costs of the e-discovery.
SCHWEIZER: [I]nvest some money and time in having a good in-house e-discovery process so that you can do it efficiently in a defensible way, efficient and cost-effective. It won’t eliminate all the problems.
MACFARLANE: We want to be fair and fight on principal where it is required and resolve where we don’t need to look at the 3,000 documents because we know the facts.
CAMPBELL: I think we have an opportunity here to try to do something else and get some level of co-operation earlier on, but from what I’m seeing, we still have lawyers and clients, perhaps not at the big level, I keep coming back to the smaller cases, that don’t know any of this, so they don’t do anything at the beginning, and that is where I think part of the culture has to change.
D’SILVA: In addition to having the good document retention policy and management systems, when the litigation starts, not to — again I’m talking mostly class actions — when you send a memo around to the people in the company, not to send off alarm bells unduly. I think that is both don’t send it to everyone in the company because not everyone in the company has relevant documents, and we have certainly rewritten a number of these memos because somebody thought it would be a good idea saying, as you know we have been sued in a $500-million class action which will, in all likelihood, put us in jeopardy of our survival. These alarm and you say, hang on a second, slow down. So, I think those are the two aspects. Don’t send it to everybody and tone it down, because it is pretty standard stuff, making sure everyone keeps their documents and nothing gets destroyed.
One of Canada’s most experienced and respected legal journalists, Gail J. Cohen is the editorial director of Canadian Lawyer and Law Times, responsible for the editorial direction of all the publications in the group, which also includes Candian Lawyer InHouse, Canadian Lawyer 4Students, and the daily Legal Feeds blog. Gail has been covering the legal profession in Canada as a reporter and editor since 1997, putting her in a prime position to access and engage thought leaders in the regulatory, legal, and business realms. Canadian Lawyer and its editorial team have been the recipients of many journalism awards and their publications are highly respected throughout the legal profession in Canada and abroad.