Michael Ford (post until Oct. 31/19)
Electronic Discovery

Preliminary analysis needed for production deadline

Lawyers need to complete a preliminary analysis of the electronic documents in a case before agreeing to firm production deadlines in a discovery plan, says Wendy Cole, director of project management and counsel at Heuristica Discovery Counsel.

“Litigation lawyers often underestimate the complexity of electronic documents, what it takes to collect them, analyze them, and then ultimately review and produce them,” she tells AdvocateDaily.com.  

There is simply no way to accurately estimate how complex and labour intensive the document review process will be until the upfront work of collecting and analyzing the data has been completed, says Cole, a Toronto lawyer who focuses on legal document review projects.

"Any time estimates and promises made prior to completion of the preliminary data analysis are not worth the paper they are written on," she says. "Clients and counsel should avoid making promises to the court and opposing parties without an understanding of whether those deadlines can realistically be met.

"If you agree to a firm production deadline before you understand the scope of the documents to be reviewed and the quantity turns out to be significantly more than anticipated, or the complexity of the documents and the issues turn out to be greater than expected, the client will either face significantly increased costs in order to hit the promised deadline, or they will have to sacrifice the quality of the review.”

Cole says part of the problem stems from the sheer volume of electronic material that counsel now need to assess, calling it an “explosion of documents.”

“It’s so easy to create and accumulate electronic records, especially email messages. Where it used to be a phone call or a conversation, it’s now an email, with many emails going back and forth and different chains of conversations," she says. "So there’s been an exponential growth of the electronic trail that’s potentially relevant in any file.”

Rule 29.1 of Ontario’s Rules of Civil Procedure stipulates that parties to an action must agree to a discovery plan. Among other requirements, the plan must include: the intended scope of documentary discovery, taking into account relevance, costs and the importance and complexity of the issues in the particular action; dates for the service of each party’s affidavit of documents; and information concerning the timing, costs and manner of the production of documents by the parties and any other persons.

“Under the Rules, you have to agree to a discovery plan up front, but there is a tremendous amount of information and analysis required before you can provide an accurate timeline," Cole says.

“Before they even understand the volume and nature of the data that they are dealing with, they’re agreeing to firm deadlines for production of documents.

"They make these commitments to opposing counsel and the court, but when they realize how complex the task is, they discover that they are going to need additional resources to meet those deadlines. Even with outside help, it may turn out that the deadlines committed to simply cannot be met.”

In the days before electronic documents, “there was a finite universe of documents that you collected,” Cole says, so even if a lawyer was faced with a warehouse full of material, it was possible to measure the quantity and estimate how long a review would take.

“But with electronic documents, it’s not as tangible. You don’t have that sense of how big the review could actually become,” she adds.

When a law firm realizes it won’t be able to meet a production deadline, it may decide to outsource the work, she says. That involves finding specialists “who understand how to analyze and manipulate the data and create a plan of attack to find the relevant documents in the most efficient manner.” 

Cole says her firm is often asked by counsel “very late in the day” for assistance in meeting a production deadline. 

“Sometimes our answer is yes, and sometimes it has to be no” in cases where the documents haven’t even been collected or if the volume of data makes it impossible to conduct a credible review within the committed deadline, she says.

"There’s a great deal of upfront work that has to be done before we can even commit.”

In general, Cole says, lawyers don’t have much experience or expertise with the discipline of project management.

“They manage their files, and there’s certainly project planning within that, but it isn’t the same scope and it doesn’t involve all of the technical details," she says.

"So it’s beyond the expertise of many firms, and that’s why they call us or other outside providers. But the problem is, they often do so too late because they don’t realize how complex it is.”

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