E-Discovery Under the New Rules

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This is a 20 minute presentation to Ontario lawyers and law clerks on e-discovery and the impact of the new rules

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  • -Broad management-side employment and labour practice -In civil litigation we’re typically “document rich” but cases are not high value -If dispute resolution based on merits is to be a reality need to find a cheap way to trial or other court ordered resolution -In labour we go to arbitration all the time -Produce documents upon which you rely -Production requests are generally made respectfully because the parties have an ongoing relationship -
  • -Here’s the plan -Describe new rules that relate to e-discovery with reference to Sedona Canada Principles -Technical subject matter but I’ll try to give an inspirational message -Refer to Sedona Canada Principles -12 non-binding principles -Made by judges and practitioners -Direction to consider them in discovery planning
  • -Proportionality now a governing principle under Rules -This is text from 1.04 -Concept borrowed from British Civil Justice Reforms (cases already citing Lord Wolf) -Incorporated into Sedona Canada Principle #2 -No more one size fits all -Procedure should vary to promote… … access to justice … good use of scarce resources -Requires behaviour modifications -Need to adjust our expectations for smaller value cases -When once size doesn’t fit all….. … .parties need to understand costs…. (planning) … .parties need to talk
  • Here’s how proportionality has been imposed on documentary production duties Odd… duty still reads as absolute in Rule 30.02 But don’t be fooled! Also comes with Rule 29.1 (planning) and Rule 29.2 (proportionality) Together there is great potential to cut a different path to resolution You can play business as usual if you want – Are you serving your client? Or either party can push the new rules… push for the right tailored procedure Hopefully courts will back creative counsel who face opposing counsel who is not agreeable
  • These are the factors from Rule 29.2 that a court will consider in exercising its jurisdiction to order production Mark the first two as I change the slide
  • In order to have an intelligent dialogue about the right process And in order to defend your position on what the right process is You need to plan! Without planning you will have an discussion amongst the unintelligent -Disputes -Surface agreements that don’t resolve problems Must start with client… perhaps a technical expert -Understand options -Understand time and dollar cost associated with each option -Take that to the table
  • -More of a legal point, but significant Old rule -directly or indirectly, enable a party to advance his or her own case or to damage the opposing party’s case -includes documents that may fairly lead to a train of inquiry that would advance a party’s own case or damage the case of the opposing party
  • Again… need to plan because one size no longer fits all Let’s back up from the planning duty Must also meet and confer Must also plan with your client No avoiding it My key message -Need to engage in behaviour modification with client… we can’t put this off anymore
  • -Don’t want a large, looming and unknown cost hanging out there -Lots of areas for dispute can be managed -privilege -form of production -scope… e.g. backups -preservation…. can allow you to destroy what you’d otherwise keep -Fix problems later -If you are to actually have a dialogue that finds the right process…. need to be informed -Good case… small value… can settle for business reasons…. but if you push for a tailored sensible process you should be more likely to get a deal based on the merits
  • These are the minimum requirements from Rule 29.1 Great contrast with the Ontario E-Discovery Implement Committee Model
  • I like the model as a planning document… a checklist for use with my client Much more guarded in discussion with opposing counsel Don’t want to invite a dispute about issues that opposing counsel doesn’t necessarily understand Don’t want to have to educate opposing counsel about proportionality The time may come where we’re able to have a more transparent dialogue to find the right process…. but it’s early
  • Here’s my summary Two key messages really … .can do business as usual or can use the rules and push for change if it helps your client … .planning can’t be superficial
  • -Broad management-side employment and labour practice -In civil litigation we’re typically “document rich” but cases are not high value -If dispute resolution based on merits is to be a reality need to find a cheap way to trial or other court ordered resolution -In labour we go to arbitration all the time -Produce documents upon which you rely -Production requests are generally made respectfully because the parties have an ongoing relationship -
  • E-Discovery Under the New Rules

    1. 1. E-Discovery under the new Rules Now that it’s your procedure, what are you going to do about it? Dan Michaluk March 23, 2010
    2. 2. What’s new <ul><li>Proportionality as a governing principle </li></ul><ul><li>Semblance of relevance threshold is gone </li></ul><ul><li>Discovery planning requirement </li></ul>
    3. 3. Proportionality <ul><li>Procedure proportionate to </li></ul><ul><ul><li>importance and complexity of the issues </li></ul></ul><ul><ul><li>amount involved in the proceeding </li></ul></ul><ul><li>No more “one size fits all” </li></ul><ul><li>Sorry, but you shouldn't expect to always have a perfect view of the case! </li></ul>
    4. 4. Proportionality <ul><li>Rule 30.02 still says “shall” disclose and produce everything </li></ul><ul><li>Production rule must be considered with new planning and proportionality rules </li></ul><ul><li>All considered, this is a paradigm shift! </li></ul><ul><li>Creative counsel will push to streamline </li></ul><ul><li>Courts should back creative counsel </li></ul>
    5. 5. Proportionality <ul><li>Considerations re documentary production: </li></ul><ul><ul><li>Time involved in producing </li></ul></ul><ul><ul><li>Expense in producing </li></ul></ul><ul><ul><li>Cause producing party “undue prejudice” </li></ul></ul><ul><ul><li>Unduly interfere with orderly progress of action </li></ul></ul><ul><ul><li>Information readily available from other sources </li></ul></ul><ul><ul><li>Would it cause an excessive volume to be produced? </li></ul></ul>
    6. 6. Proportionality <ul><li>Litigating proportionality </li></ul><ul><ul><li>Goes hand in hand with planning and project management </li></ul></ul><ul><ul><li>Trap – asking for something impractical because you didn’t foresee it as such </li></ul></ul><ul><ul><li>Trap – proceeding based on assumptions about time and expense </li></ul></ul>
    7. 7. Relevance <ul><li>“ Relating to any matter” becomes “relevant to any matter” </li></ul><ul><li>Osborne Report says intent was to get rid of “semblance of relevance” test </li></ul><ul><li>Bye, bye Peruvian Guano </li></ul><ul><li>Potential to eliminate investigatory aspect of discovery </li></ul>
    8. 8. Discovery Plan <ul><li>It’s about more than filling out a template </li></ul><ul><ul><li>“ Shall” agree and “shall” update </li></ul></ul><ul><ul><li>You do so at a “meet and confer” </li></ul></ul><ul><ul><li>You can’t meet and confer without planning with your client </li></ul></ul><ul><li>Yes, we are being forced into project management </li></ul>
    9. 9. Discovery Plan <ul><li>This is good because </li></ul><ul><ul><li>Production costs are relevant to strategy </li></ul></ul><ul><ul><li>Lots can go wrong with e-discovery </li></ul></ul><ul><ul><li>It costs way more to fix problems later </li></ul></ul><ul><ul><li>It should allow you to cut a path to resolution based on the merits, not economics </li></ul></ul>
    10. 10. Discovery Plan <ul><li>Minimum requirements </li></ul><ul><ul><li>Intended scope </li></ul></ul><ul><ul><li>Dates for service of affidavit </li></ul></ul><ul><ul><li>Timing costs and manner of production </li></ul></ul><ul><ul><li>Names of persons to be produced for examination </li></ul></ul><ul><ul><li>Other information intended to result in expeditious and cost-effective completion of the action… </li></ul></ul>
    11. 11. Discovery Plan <ul><li>How fulsome? </li></ul><ul><ul><li>Document rich parties nervous about transparency </li></ul></ul><ul><ul><li>Strong pronouncements on proportionality will encourage a transparent dialogue </li></ul></ul><ul><ul><li>Until then… </li></ul></ul><ul><ul><ul><li>Don’t skimp on planning with your client </li></ul></ul></ul><ul><ul><ul><li>Meet the requirement in the Rules </li></ul></ul></ul>
    12. 12. Parting words <ul><li>Rules establish a basis for major change </li></ul><ul><li>Dependent on counsel and courts to recognize difference </li></ul><ul><li>Starts with planning and project management </li></ul><ul><li>Then takes a bit of courage to push for a better way through to trial </li></ul>
    13. 13. E-Discovery under the new Rules Now that it’s your procedure, what are you going to do about it? Dan Michaluk March 23, 2010

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