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Electronic Discovery

Dispelling myths about discovery plans

Discovery plans reduce the cost of litigation when properly used, says Wendy Cole, director of project management and counsel with Heuristica Discovery Counsel.

Rule 29.1 of Ontario’s Rules of Civil Procedure was changed in 2010 to require all parties to an action to agree to a discovery plan if they intend to obtain evidence through documents, oral examination, inspection of property, medical examination, or examination for discovery by written questions, she tells AdvocateDaily.com.

And since that change, Cole says her position at Heuristica — Canada’s only independent law firm providing eDiscovery service — means she’s no stranger to the myth that planning adds barriers and expense to the litigation process.   

“In my view, the opposite is true,” Cole says. “There’s nothing more expensive than having to redo work or arguing motions after the fact.

“By getting the parties to agree up front as to how and when to exchange documents, they reduce the chances of missteps and extra work,” she adds.

Counsel are most likely to complain that the opposing side is attempting to use the plan to escalate costs unnecessarily, Cole says, but adds the requirement must be viewed in the context of other changes to the Rules, which emphasize the principle of proportionality in the process.  

“The truth is there has always been a requirement in the Rules for parties to exchange documents,” she says. “One of the fundamental guiding principles is proportionality, so discovery should be proportionate to the case.”

While counsel often complain that discovery plans prompt disputes over the relevance of documents at an early stage of the litigation, Cole says they are not justified.

“Having a discovery plan that mandates a discussion over scope, source, format and timing doesn’t increase the cost,” Cole adds. "It will, however, allow parties to resolve these issues earlier as opposed to waiting until it is too late and the productions are done."

She says the reticence to embrace plans may be a holdover from the era before electronic documents dominated the discovery process, or because counsel are not familiar with best practices for electronic evidence and the tools available to assist.

“When everything was handwritten, and the exchange occurred in paper, you didn’t really need a plan regarding the format and exchange,” Cole says. “It was simpler because you could just decide what was relevant, and the only question was whether you wanted photocopies or originals.”

Now, she says electronic documents can be produced to a variety of specifications, in native form or as images, and with metadata.

“Furthermore, the source of data and variety of content of some evidence means that some of it can not be printed," Cole says. "There are more questions to be asked, but it’s critical that they are addressed in order to avoid expensive rework. There’s nothing more costly or wasteful of a client’s money than having to redo documentary discovery.

“It’s not good business, and it’s not good professionally, and if you don’t agree on all those details up front, you’re begging for additional costs,” she adds.

According to Cole, another myth related to discovery plans is that they’re not needed for small cases without a huge number of electronic documents.

“I don’t think there is any litigation in recent years that doesn’t have documents that originated electronically, so you’re going to want to produce those electronically, and demand the other side does the same,” she says. "Despite the myths, working with documents electronically is less expensive."

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