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Electronic Discovery

Lawyers need to use latest technologies in cases

Current practice standards demand counsel become more competent in electronic discovery, or face potential liability risks, says Toronto eDiscovery lawyer Crystal O’Donnell.

O'Donnell, founder and CEO of Heuristica Discovery Counsel, Canada’s only independent law firm providing eDiscovery services, says "although the field has been growing in the past decade, the level of knowledge of counsel is generally insufficient when it comes to the management and presentation of electronic evidence."

Heuristica helps clients, including law firms, corporations and government deal with electronic evidence in all types of legal matters.

O'Donnell tells AdvocateDaily.com that while almost all evidence — with exceptions such as physical evidence or a handwritten note — is now electronic, the profession is primarily still dealing in paper.

“While there are no specific competency requirements in any of the Canadian jurisdictions for eDiscovery, our current rules of conduct require general competency, which in current times includes an understanding about the use and application of legal technology” she says. 

“However, there are a growing number of states in the U.S. that have specific electronic evidence competency requirements.”

O'Donnell and Heuristica COO and senior counsel Brian Pel say California was one of the first states to set a standard for electronic evidence competency and practice ethics.

“If a lawyer doesn't have sufficient knowledge to properly handle the eDiscovery aspect of a file, they have a professional obligation to retain counsel who does” O'Donnell says. “What we often see is counsel who think they understand the process but don't.”

She says not using cost-effective methods in handling electronic information could have cost consequences, citing an Ontario decision where Justice David Brown reduced the cost award for the electronic discovery aspect by two-thirds due to inefficient processes.

“Given the threat that runaway discovery costs now pose to our civil litigation system, I think courts must scrutinize with great care cost claims for documentary discovery,” Brown said in the ruling. “Complex litigation, such as this action, often results in much documentation. Fair enough; that is just the nature of the complex litigation beast, to some extent.

“But in the face of such complexity, litigation counsel(s) are obligated to introduce and apply efficient, cost-effective document management and review processes”, Brown stated.

Pel says using inappropriate processes, including having law firm associates inefficiently review documents, and not properly using "robust analytics" to reduce the review time required could see clients penalized. The failure to conduct eDiscovery efficiently leaves the client at risk of not only paying more but also not recovering eDiscovery costs even though the case may have been won.

O'Donnell and Pel say they believe Canada’s legal regulators should consider adopting similar technological competencies and practice ethics as in American jurisdictions. They also believe that law schools should provide courses for law students to learn the issues arising from legal technology. “Thus far, only a few of the law schools have been willing to provide education in legal technology,” O'Donnell says.

Technology changes the way lawyers should produce documents in a lawsuit, Pel says. Rather than churning out thousands of pages of paper documentation, the material should be dealt with and delivered electronically, he adds.

Robust use of the technology by counsel can also reduce the time needed to review documents. “Our average review rate has increased to about 200 documents an hour — significantly faster than a traditional style review”, Pel says. 

O’Donnell notes that being faster and less costly offers a strategic advantage to litigation counsel — an early and thorough document review permits counsel to make informed early decisions about the future conduct of the litigation.


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