The Canadian Bar Association
Electronic Discovery

Heuristica: Canada's only independent eDiscovery law firm

It was seven years ago when Crystal O’Donnell began to really understand the capabilities and potential of electronic discovery technology, and she was agog.  

“My first thought was, ‘Holy smokes, if you can actually teach lawyers to embrace this technology, you’re going to revolutionize how we do this,’” the Toronto eDiscovery lawyer tells AdvocateDaily.com.

O’Donnell founded Toronto-based Heuristica Discovery Counsel, Canada’s only independent law firm providing eDiscovery services, in 2015. 

“Heuristica sprung from a desire to show that there are better ways of utilizing the technology and helping lawyers, and to do it in a much more cost-effective and meaningful manner,” says O’Donnell, a litigator and eDiscovery counsel who has worked in private practice as well as with the Ontario Ministry of the Attorney General. 

Now, just a year-and-a-half later, driven by the growing importance of electronic evidence, and its ever-increasing role in law, the company is expanding. Earlier this month, Duncan Fraser joined the firm as co-CEO and senior counsel to lead the establishment of an Ottawa office to serve the National Capital Area, as well as Québec and Eastern Canada.

A litigator with 20 years of legal experience, Fraser led the federal Department of Justice’s creation and implementation of its electronic discovery services. 

“The challenges that lawyers and the legal profession face when they are dealing with technology are often overwhelming,” Fraser says. “A career in law doesn’t prepare you for dealing with electronic information. It’s very hard to find the skill set and the experience because they don’t teach this in law school.”

The term eDiscovery was coined around a decade ago. While there has since been an explosion in electronic evidence, many aspects of law are still analog. 

“eDiscovery is a specific subset of law, and it’s one that’s growing in importance,” Fraser says. “We live in a digital society and yet the legal profession still largely works on paper binders in court.”

That said, electronic evidence permeates the system already. Dealing with it is not optional, it is required, he says.

“Every law firm in the country is doing this,” Fraser says. “They are required to deal with electronic evidence in litigation. It’s part of the rules in every jurisdiction. They’re managing it the best they can with the tools they have. But just like any law firm that is engaged in providing a service, it can be done faster, better, cheaper.

“eDiscovery is not new. But it’s at the tipping point now.”

Traditional document review – still the norm – means hiring large teams of lawyers to review documents in batches and to go through them one by one. 

Early document review software allowed for simple keyword searches, but manual scrutiny of the results was still required. Now, it is possible to search concepts, not just words, as program algorithms build out search sets that include slang, jargon, misspellings and more, detecting patterns to predict relevant documents and narrowing the search, which can translate into significant savings of time, and therefore money, for clients, she explains. 

“The software these days is incredibly robust,” O’Donnell says, “and has many features that are typically not optimized by users.”

Heuristica helps its clients, which include law firms, corporations and government, deal with their electronic evidence in any type of legal matter. Along with training and legal document review, Heuristica’s services also include the provision of review software, eDiscovery planning and proportionality/defensibility opinions. 

That can mean negotiating parameters around a discovery plan, helping clients develop proportionate and defensible processes for their evidence, as well as review and summary of evidence. 

“In many cases, we act as part of the litigation team, albeit an external part of it,” O’Donnell says. 

“As a law firm, we can assist clients and provide legal opinions on the defensibility of our process,” she says. “I’ve appeared with clients in front of judges to deal with electronic evidence matters. We’re also able to provide detailed analysis of the evidence in relation to the specific legal matter.” 

Because it is a law firm, Heuristica retains solicitor-client privilege, is covered by professional indemnity insurance, and has fiduciary duties to its clients. 

Along with its core staff, Heuristica has a roster of 60-plus lawyers, as well as other professionals it can call upon. 

“It used to be that lawyers used the technology to help them,” Fraser says. “Now, we’re starting to see that highly skilled lawyers can support and improve the technology.” 

O’Donnell says it is exciting to be involved with this growing subset of law. 

“We share a vision that we expect will help transform the profession and the industry,” she says.

 

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