Lawyers Financial
Electronic Discovery

eDiscovery law firms can offer key protections: O'Donnell

Hiring Canada’s only independent law firm providing eDiscovery services brings with it a number of unique key protections, says Toronto eDiscovery lawyer Crystal O’Donnell.

“We maintain solicitor-client privilege; we have and comply with our fiduciary obligations, and our entire team carries professional indemnity insurance,” says O’Donnell, founder and CEO of Heuristica Discovery Counsel.

“We can also provide legal opinions regarding the defensibility and proportionality of our processes,” she adds.

Working with a law firm for cutting-edge electronic document review and research services for Canadian proceedings can also be cost effective, says O’Donnell. 

“Our approach is to take a team of lawyers and turn them into hybrid legal technologists,” O’Donnell tells, adding they don’t rely on IT personnel for initial document sifting. 

Instead, Hueristica’s reviewers combine their legal and technology training with sophisticated search software to conduct deep exploration of legal files, she says. 

O’Donnell notes that Heuristica’s lawyers can reach review rates of 150 to 200 documents an hour, unlike the usual 50-document-an-hour rate under the traditional document review model. This can cut client costs by as much as half, she adds while providing a better-organized work product for litigators.

Meanwhile, O’Donnell says there are non-law firm eDiscovery businesses that take the position they are not providing legal services such that their contract review lawyers need not carry professional indemnity insurance. That denies clients a key protection that a law firm provides.

Under the Law Society Act (Ontario), she notes, a person provides a legal service if he or she selects “a document for use in a proceeding before an adjudicative body” or “engages in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person.”  

As such, non-law firm review providers are arguably providing legal services because they use lawyers to examine documents to determine whether they are relevant or privileged in a litigation context, O’Donnell says.

Clients using a law firm for document review can rely on, in addition to the benefit of LawPRO insurance coverage, a number of key legal protections including fiduciary obligations and solicitor-client privilege. 

That’s important she says because privilege over key documents could be lost at the end of particular litigation, with possible negative consequences if further collateral litigation occurs.

In short, O’Donnell recommends hiring a law firm that is both equipped with the aptitude for dealing with increasingly complex electronic document discovery and that provides all available client protections.

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