ELECTRONIC INFORMATION STORED OUTSIDE CANADA

FRIEDMAN: It is certainly an issue getting the data out, sometimes, from a jurisdiction that has a blocking statute or privacy legislation, from European countries. . . . You often spend time negotiating with the privacy commissioners of various jurisdictions to say, this is what we’re going to do before the clawback or take the data out of the jurisdiction. We’re talking X, Y, and Z steps to protect private information before we do that. I think that those issues definitely do come up. I think that the privacy review has to happen locally, I think, but it doesn’t always.

SCHWEIZER: I don’t know if there is any judicial consideration of the appropriateness of the lawyers doing privacy privilege relevance reviews when they are not licensed to practise in the jurisdiction. That is an issue that will have to be dealt with at some point.

FRIEDMAN: I don’t know if the in-house counsel around this table has had the experience — a lot of my clients worry about the Patriot Act data going to a U.S. vendor and housed in the U.S., in reach of the U.S. government. But I’ve seen concerns but never seen a problem.

SCHWEIZER: I haven’t. The issue comes up and the concern and the preference would be keep the data housed in the country for that reason. But I haven’t seen an example of it going the wrong way.

CAMPBELL: There is another area related to this that you won’t have seen on the e-discovery issue but I have and others in the judiciary have and that’s, I think, there is getting to be a growing recognition of the transparency of borders for certain purposes, but a recognition, as Kelly pointed out, that where information initiates locally, that place should be the best determiner of what happens, and it is coming because of things like child porn. And we have got very good co-operation from Internet service providers where the police or private organizations have come to the court asking for assistance to get help from the court in which that service provider originates or the domain name came from. More on the criminal side. But they are seeing it as a growing co-operation of saying, you know what those issues should be dealt with best by, at least in the first instance, and a recognition under a comity basis, that is the best place to go. But that is in its infancy and there’s lots more to come.

PREPARING AHEAD FOR E-DISCOVERY ISSUES DOWN THE ROAD

SCHWEIZER: Speaking personally, we have certainly learned something from each e-discovery project that we tackle, but I’m not going to give the advice to companies to be sued regularly to gain that expertise. But there is something to be said about the experience. You learn what works and what doesn’t. Even in-house counsel potentially involved in managing litigation should know, just on a rudimentary level, what their company’s practices are with respect to storing electronic data, e-mails. Is it backed up? Is it overwritten? Those sorts of things. Having contact in key departments so you can go — rather than, on a Friday afternoon, panicking — because you have to immediately put a litigation hold in place and you have no idea how to do it. So giving some thought to those basic things needs to happen across the board.

BUILDING TIES BETWEEN IT AND LEGAL

SCHWEIZER: Especially if you’re looking at doing some of your electronic discovery in-house. It can’t be something imposed by the legal department. You absolutely have to have the buy-in of the IT department and the support from them because they are the ones who control access to the server, who control the e-mail exchange server. So that is absolutely crucial.

MACFARLANE: Someone can develop expertise in your IT department the same way you leverage off expertise from internal lawyers and not always have to deal with external lawyers. You can have the internal resource knowing the system. If you have to bring in an external expert, that’s going to give you a big leg-up in efficiency, and someone understands what the external expert will be looking for.

FROM CRISIS MODE TO PLANNING MODE

FRIEDMAN: We talked about lawyers needing to have a cultural shift. I think a cultural shift internally in corporations for e-discovery is changing it from crisis management to readiness planning. I do some work in the product recall area and most companies that have commercial goods have product recall plans for what they have to do if they have to recall a product. If they don’t, they are in complete crisis mode and that’s what happens in the e-discovery realm.

MACFARLANE: It will be interesting to see how the law of spoliation develops in Canada. Is it going to be similar to the U.S. or different? Are we going to be able to take comfort from the fact we have known this stuff up front and put a reasonable plan in place or is it more of a trap? It will be interesting.

CAMPBELL: I hope we don’t go down the route we have in the U.S. I think we can avoid it, because I think the one thing that Canadian lawyers are attuned to is our obligation to reduce relevant documents, whereas in the U.S., their rule is you only produce what you are asked for. And I think that is what drives a lot of their confrontation. . . . So the big knock on what we’re all doing is, are we destroying civil litigation? We have invented industries to take care of the growing amount of information that is available. It does have to be controlled and tamed, and I think I go back where Melanie started, with the meet and confer, changing the culture right at the beginning, so people don’t feel that it is so adversarial. I’m looking to find a way to nail them on spoliation, but rather, I can be satisfied and tell my clients that they have done what was reasonable in these circumstances. Big task, but hopefully we’ll get there.

FRIEDMAN: I spoke at a conference about major business agreements. I thought it was odd they brought in a litigator, and I started doing it annually because I enjoy talking to corporate lawyers or securities lawyers about what you see as a litigator. They don’t know about what you see from their drafts and what ends up coming to you, really opens their eyes and makes them think about how they practise, prepare for the IPO; what they do with drafts; how they communicate internal drafts; what goes to the other side. So I think part of the readiness is making non-litigators understand how their work product can turn into evidence.

MACFARLANE: It gets into the privilege point if you are anticipating a lawsuit like a product recall situation. You have to think, how do you maintain litigation privilege. How am I going to prove to a court it was intended to be privileged and it is privileged, and after the fact, how do you extract all the privileged information after the fact?

CAMPBELL: I think, as courts look at things, they are going to look . . . to what extent is the problem dealt with by normal and ordinary practices that have been in place for a while as opposed to looking at crisis mode?

D’SILVA: The client is much more prepared for the second class action. The first one, they are not so prepared. They learn a lot.

SCHWEIZER: An interesting question that is going to arise, become more prominent, is the question of when the preservation obligation is triggered, and it’s a very tricky issue, especially when you are a larger company. It is easy to measure it from the date the statement of claim arrives on your desk, but if you are looking at an earlier time period, that is where it gets more tricky. I hope we don’t go too crazy with the obligation to preserve and when it is triggered, because I think that would have negative consequences.

There’s more online

Visit canadianlawyermag.com/inhouse for videos from the roundtable, to be posted each Monday in June.

Video 1: Dealing with proportionality 

Video 2: Protecting privacy

Video 3: International and cross-border issues

Sedona Canada publications are online at www.thesedonaconference.org/publications_html?grp=wgs170

Ontario Bar Association e-discovery information page, which includes Quebec case law, is at cba.org/dev/oba/en/main/ediscovery_en/default.aspx

Government of Alberta e-discovery information: www.im.gov.ab.ca/index.cfm?page=imtopics/ediscovery.html

E-discovery Canada page from LexUM: www.lexum.umontreal.ca/e-discovery/

Wortzman Nickle e-discovery blog: www.wortzmannickle.com/ediscovery-blog/