The first draft of the Sedona Canada Principles addressing electronic discovery was released in late January. Martin Felsky, co-founder and CEO of litigation support services company Commonwealth Legal Inc., says: “The principles really direct lawyers in Canada as to their responsibilities vis à vis electronically stored information, and what’s happening right now in Canada is that there are a lot of drivers pushing lawyers towards electronic discovery.”
These drivers include a number of cases where e-discovery has been discussed, as well as the fact that certain administrative bodies, such as the competition tribunal, are specifically requesting electronic information. “The lawyers are now starting to, I think, realize that finding, and organizing and sifting through, and then ultimately producing large volumes of electronically stored information is a lot more difficult and complicated than they would have assumed at the beginning,” says Felsky. As you start to delve into e-discovery, the technical issues and the strategic issues start to get complex, he adds.
Lawyers who are working diligently for their clients on these files “are realizing that they do need help, and that they need the right kind of help — not just IT help, but e-discovery help,” he says.
Indeed, more than globalization or demographic shifts, e-discovery is the area lawyers feel will have the biggest impact on the practice of law over the next five years, according to a recent survey by Robert Half Legal. David Outerbridge, a lawyer with Torys LLP in Toronto and chairman of the Ontario E-discovery Implementation Committee, a joint committee of the Ontario Bar Association and The Advocates’ Society, says there is definitely a developing niche market for specialists in e-discovery.He notes there is a major learning curve in e-discovery at the moment, and there are few people with a true specialization in this area. “[A] major educational task [is] still ahead, both for lawyers and for judges,” he says. “I think it will be a number of years before everyone feels comfortable.”
Wortzman Nickle Professional Corp. is the first and only law firm in Canada devoted to advising clients and lawyers on e-discovery and related issues. Since its launch last fall, Susan Wortzman says the firm has been retained in equal measure by other law firms and clients directly, as there is a need on both sides for some specialty and expertise in the e-discovery area. “One of the biggest reasons for that also is the mistakes — the mistakes that you make can be very costly,” she says. “This is sort of a scary area to be feeling your way through when you’re actually navigating a real piece of litigation.”
Prior to founding the firm, Wortzman, who is also chairwoman of the Sedona Canada working group, says she saw a trend developing in America of specific law firms devoted to e-discovery. “It was really watching some of our friends in the United States and seeing the work that they were doing in this specific specialty area and thinking we have a need for this in Canada,” she says.
Firm co-founder Susan Nickle, also a member of the Sedona Canada working group, says many lawyers think they don’t have the kind of practice in which e-discovery would be relevant, but it is rearing its head in areas such as family law, criminal law, and smaller employment cases. “A lot of lawyers think, ‘Oh, this e-discovery, it’s not really that complex — discovery is just discovery.’ But it can be very complex when you’re dealing particularly with larger corporations, simply because of the way in which the electronic information is stored,” says Wortzman.
“It’s one of those areas that, because it’s relatively new . . . particularly in Canada, [in] every case we’re learning from the last experience. So experience is really, really valuable in being able to . . . navigate the e-discovery process, circumvent any problems ahead of time, foresee the appropriate time to bring an expert in. There are lots of nuances to it that take it out of the traditional practice,” she adds.
Wortzman Nickle is often retained by other law firms that may not have enough expertise or people on staff to work on a complex e-discovery matter, which also entails the preservation, collection, and — sometimes — review of the electronic material. Those are the areas the firm specializes in and also where its involvement in cases ends.
At the preservation and collection stages, Wortzman Nickle also works with e-discovery experts, such as forensic experts on the data side. “We actually function quite well as a bridge between the law firm and the forensic experts,” says Wortzman.
Smaller firms, too, feel they don’t have the depth or expertise in some cases and want to bring in someone with e-discovery expertise, she says. This often involves working with the forensic company. But even when someone is looking for legal advice, her firm’s involvement can mobilize the team, adds Wortzman.
Robert Deane, a partner in the Vancouver office of Borden Ladner Gervais LLP and member of the steering committee and editorial board of Sedona Canada, says the discovery of electronic information is a feature of all, not just complex, commercial litigation. Not everyone can be an e-discovery specialist, but he thinks all lawyers should have a working knowledge of the features of electronically stored information.
One area sure to further involve litigators, says Deane, will be in the early stages of litigation: dealing with the way in which electronic data is stored and maintained, and advising clients how to create a litigation readiness plan. “One thing I think will become more and more prevalent for clients is to engage counsel and have counsel assist in the development of litigation readiness plans.”
Torys’ Outerbridge also says many companies would benefit from litigation-readiness planning. One question he posits is, when is it appropriate to use litigation experts in a file when the litigation commences? One of the problems with e-discovery, he says, is that the cost of the best practice may not be proportional to the value of the case. As a result, the OBA’s e-discovery committee is currently working on guidelines for small practitioners, which it hopes to release this year.
As a consultant in e-discovery, Felsky says much of what he does is help clients understand strategies for controlling the cost- — making sure the whole process is meaningful to them and that they have a plan of action for litigation discovery.
Planning, strategy, collaboration, and bridging of the gap between technology and the law are areas where there is a real demand and increasing need for experts in e-discovery, says Felsky.
Right now, he adds, there are a lot of pitfalls. “I think as lawyers start to come up against some of these issues . . . there will have to be more interest in using experts to assist with the e-discovery process. It’s a combination of technical issues and strategic issues that lawyers need advice on, and they really have to have someone who bridges the gap between the legal and the technology.”
Felsky agrees that e-discovery is a growing area for lawyers. “Lawyers who know about e-discovery and who have experience with e-discovery are going to be in great demand, because as other lawyers get into these cases they’re going to need some assistance from the right people,” he says.
“There is a growing group — it’s very small — but I think there are people in different firms now who are starting to recognize that there may be potential for them to develop into this practice area and to help other lawyers in that.”
Indeed, many large firms have already created working groups responsible for developing strategies for e-discovery, says Deane. This includes developing standards and protocols, and educating litigators by giving them the tools to access e-discovery more quickly and efficiently. Outerbridge says he’s also seeing specialized lawyers and committees within the litigation departments of many firms, which tend to be up to speed on e-discovery developments. Myriad technical elements are also leading to a growing trend of litigation departments hiring document-management consultants or in-house e-discovery departments.
Wortzman says she suspects more lawyers will focus their practice in this area, as it is very busy at the moment. Going forward, it will be a combination of law firms that manage e-discovery internally and those that, in specific cases, will say the magnitude of the case is too large or the firm too busy and that they need to bring someone with expertise in, she says. The decision ultimately will be file-dependant, as some firms will make the decision that they don’t have the resources to develop the expertise and that it’s worthwhile to outsource, says Nickle.