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Electronic Discovery

Practical teaching of eDiscovery lacking in Canadian law schools

Programs to teach law students, bar admission candidates and practising lawyers about electronic discovery are sorely lacking in Canada — and there seems to be little desire to fix the problem, Toronto eDiscovery lawyer Crystal O’Donnell tells

“One of the issues facing the legal profession generally is the lack of practical teaching in law schools. With the increasing importance of the merging of law and technology, this education becomes critical, and there are no other real avenues for lawyers to understand and learn about electronic discovery,” says O’Donnell, founder and CEO of Heuristica Discovery Counsel.

“At present there are relatively few counsel who have the required skills to appropriately deal with electronic evidence in a way that is defensible, proportionate and cost-effective”.

O’Donnell says eDiscovery isn’t taught at law schools or the bar admission course, and for practising lawyers, occasional webinars are available, but they’re short and provide insufficient information.

One place that does teach about eDiscovery, she says, is Ryerson University’s Law Practice Program, which provides an alternative to the traditional articling program.

Ryerson is also hoping to open its proposed new law school in 2020 if it receives all necessary approvals, and it plans “to take a more practical approach to teaching,” says Heuristica COO and senior counsel Brian Pel. “I think law schools, by and large, have always believed that they’re there just to teach the theoretical aspects of law but none of the practical aspects.”

Pel says the Federation of Law Societies of Canada offers one bright light in the struggle to improve the understanding of eDiscovery. The organization is currently debating changing its Model Code of Professional Conduct to include a technology competency requirement, he says, adding, “Someone’s recognizing there has to be technological competence in some areas of the practice of law.”

Another bright light is the Ontario eDiscovery Implementation Committee (EIC), which was set up “to recommend, promote and, where possible, implement thought leadership, best practices and law reform with respect to information management, discovery, litigation support and paperless proceedings.”

The committee organizes an annual conference to discuss eDiscovery issues, but for the most part, lawyers have to resort to “trial and error,” O’Donnell says.

“Electronic discovery is just discovery. The addition of the word ‘electronic’ makes most people think it’s somehow different or unique, and not applicable to their practices. The reality is that all evidence these days, unless it is handwritten notes, physical evidence or oral testimony, is virtually all electronic in its form,” she says.

“This isn’t an issue that is purely technical or to be delegated to a law clerk. It is a growing, complex area of law, and counsel either need to learn it, or seek assistance from those who have developed a deep understanding of the issues.”

Failure to learn about eDiscovery “has very definite ramifications for the conduct of litigation. If the lawyer doesn’t understand it, there’s trouble,” Pel says, noting that in large commercial cases, there can be millions of documents.

“If you don’t do it efficiently, you risk — even if you’re successful on behalf of your client — not being able to fully recover your eDiscovery costs on a particular matter,” he adds.

“It is incredibly complex, and at every stage of this process legal decisions need to be considered and made. And if counsel don’t understand the process as a whole, there could be errors made at each one of those stages, which will have an impact on costs for the clients, the ability to preserve and produce relevant evidence — and if you err on either of those things, there’s a risk of professional negligence,” O’Donnell says.

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