Accounting for Law
Electronic Discovery

Planning can prevent eDiscovery disputes

Proper planning is the best way to avoid eDiscovery disputes, Toronto eDiscovery lawyer Crystal O’Donnell tells AdvocateDaily.com.

O’Donnell, founder and CEO of Heuristica Discovery Counsel, says arguments over the scope and speed of eDiscovery are a sure-fire way to drain the resources and increase disputes in litigation or arbitration. Many of the disputes she sees between parties are typically avoidable with proper planning and cooperation.

“The most expensive aspect of eDiscovery is when you have to go back and redo something, and the odds of that happening are significantly increased when there is no clear agreement in place,” O’Donnell explains. “Before you embark on any eDiscovery matter, you need to put the appropriate amount of time into planning.”

Sometimes problems arise because lawyers enter into agreements without understanding the consequences, she says. As a result, counsel inexperienced in this area may need to take advice before committing to an eDiscovery plan, O'Donnell adds.

“A key factor is timing,” she says. “Counsel either don’t have enough technical knowledge to know what they’re agreeing to, or they commit to production timelines before they have an understanding of how much data is at issue.”

Still, O’Donnell acknowledges some disputes are unavoidable. Judges in Ontario have an ability to impose a discovery plan on parties to litigation, but she says turning to the courts is not always the best option, since there are few judges or masters with an extensive background in eDiscovery.

“There are a few masters and judges who are very knowledgeable about the subject and the technology involved, but you could be taking a risk by leaving it in the hands of an adjudicator who does not have that kind of experience,” she says. “Bad facts make bad law, and bad positions in eDiscovery can set some bad precedents.

“If they can’t get an agreement together on a discovery plan, we encourage our clients to use arbitration and mediation services,” O’Donnell adds, noting that some practitioners, including former Superior Court Justice Colin Campbell, have developed ADR services specifically for eDiscovery.

“We’re interested in helping parties resolve disputes to avoid the time and expense of bringing motions, and to avoid the risk of being bound to unrealistic timelines made without sufficient information or knowledge,” O’Donnell says.

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