Not just for the big guys

E-discovery is commonly associated with large files, often those involving tens of thousands (or more) of documents. As such, there is a perception that significant e-discovery lies solely within the purview of large firms.

This view is problematic for two reasons. First, e-discovery is really just discovery, but of documents created and stored electronically. The format in which documents are created is not related to the circumstances in which litigation arises. Increasingly, “small” cases — those involving modest sums or disputes between individuals — turn on the discovery of electronic evidence.

Second, this view implicitly assumes e-discovery requires significant capital commitment. While the costing of e-discovery products and services will be addressed in another article, increasingly we are seeing costing innovations that permit the reduction and distribution of costs and the completion of more work with less. Knowing how to ask about costs leads to insight on how these services can be economically delivered on files involving a modest number of documents.

There are exciting developments in the e-discovery world. Increasingly, changes in technology and market factors are levelling the playing field, such that knowledgeable counsel in any law firm arrangement (including sole practitioners) can participate in files involving e-discovery — even significant e-discovery.

There are three major contributing factors:

• clients’ in-sourcing of e-discovery;

• the rise of secure web-hosted e-discovery platforms as the preferred delivery model; and

• the consolidation of knowledge in e-discovery vendors that offer significant consulting and project management expertise.

The first development may actually be the most important, and could change how clients of all sizes hire litigation counsel. Many companies are getting their information governance house in order, including preparing for litigation by ensuring systems are in place to respond to e-discovery requests. I am also seeing many companies bringing their e-discovery function in-house, and acquiring e-discovery tools that permit litigation holds and collections. Clients are also investing in review platforms. Where in-house legal departments have ensured their organizations are litigation-ready, they have increased flexibility in deciding where to place their litigation work. A matter that was once given to a large firm, on the basis that “many hands” were required for an e-discovery effort, can now be placed elsewhere.

Lawyers who serve individuals may be experiencing the opposite. Changes to personal computing have provided individuals with much greater control over their own electronically stored information. On the other hand, some individuals can collect significant amounts of electronic data, but this information is not always organized or readily available for litigation. This has knock-on effects for e-discovery within litigation, and may materially increase the cost of discovery for unprepared individuals.

Second, there have been significant advances in technology commonly used for e-discovery. As a result, the available resources are more standardized and visually appealing, and have uniform characteristics and functionality across major platforms. These developments all contribute to lowering the time barrier to entry for the legal team: it is possible to start using one of these tools with just a small investment of time in training.

Furthermore, e-discovery tools are increasingly being delivered to the marketplace (including to lawyers) through “software as a service” (SaaS) models, in which a lawyer can effectively “rent” the service provided on the Internet through a secure connection. As a result, lawyers no longer need to make significant capital investments in technology to benefit from e-discovery technology advancements. It is now possible to perform significant document review and production in these online, hosted platforms and then reload your own production and the opposing counsel’s production into the same platform. As a result, lawyers can effectively conduct their discovery of electronically stored information without their own internal tools. Alternatively, lawyers can perform significant document review work in a SaaS review tool, and bring only the productions in-house. In short, lawyers have more options for discovery work than ever before.

Finally, there is greater capability within the technology to permit more sophisticated searching of electronic records. Thus, the manpower required in previous years may no longer be necessary. A much smaller team of lawyers can perform much more sophisticated searching using modern e-discovery tools. This reduces the need for extensive document-by-document manual review, which was a defining characteristic of e-discovery projects in previous years.

The third development is the enormous growth of the e-discovery services marketplace within the past five years. During that time, there has been consolidation of e-discovery players. There are now significant, high-quality national and international players in this space, offering a range of products and services. In particular, U.S.-based vendors are entering the Canadian marketplace, either directly or through partnerships with Canadian firms. Increasingly, e-discovery services are becoming available outside major urban centres. However, with the rise of web-hosted services, location of services is becoming less relevant.

E-discovery services’ offerings are increasingly sophisticated. Providers have invested significant money and time to develop their capabilities. Frequently, it just makes sense, from a practical and economic perspective, to partner with a provider. An e-discovery project manager can supplement your resources, adding bench strength and expertise to your team. This kind of resource can be engaged on a project basis, permitting smaller teams to supplement their ranks.

Of particular significance to lawyers who practise alone, in smaller firm arrangements, or outside urban areas is the rise of document review services. Such services may permit sole practitioners or lawyers in small firms to temporarily supplement their personnel power by using lawyers specializing in document review and production to assist them. The clients of large firms can achieve wage arbitrage; smaller firms can staff up quickly without incurring capital costs.

A benefit of using a hosted platform is that clients can also participate in the document review. The combination of a document review platform that is hosted and third-party document reviewers can turn even the smallest litigation firm into — at least for a time — a larger firm. For those looking, I have written in previous columns about how to select a vendor and a review tool, and how to work with external document reviewers.

Of course the problem of pricing e-discovery services still exists, regardless of whether e-discovery is being consumed by large firms or small firms. That pricing, and how to navigate e-discovery costs, is the topic of my next column.  

Dera J. Nevin is the senior director, litigation support, and e-discovery counsel at McCarthy Tétrault LLP. A practising lawyer, she also oversees the firm’s e-discovery operations and can be reached at [email protected].

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