Thursday, May 31, 2007

OBA's E-discovery conference

Too late to register and I am sorry I have not advertised this event earlier... This is a terrific conference organised by the Ontario Bar Association and co-chaired by The Honourable Mr. Justice Colin L. Campbell, Superior Court of Justice, and Daniel E. Pinnington, Director, practicePRO, Lawyers' Professional Indemnity Company (LAWPRO).

I was glad to meet again with the Sedona Canada colleagues and as you will see, the list of speakers was, to say the least, impressive. From Justice Campbell's Opening Remarks and Introduction to the New Sedona Canada Principles to his Concluding Remarks, passing by a lovely cocktail to meet with attendees, this conference was one of the best attended and organised I ever attended.

The opening session provided the attendees with the basic background
on electronic discovery needed to survive through the day. Justice Campbell also convincingly argued why E-discovery matters - or perhaps should - to all lawyers.

The day started with one of my favorite speaker, Ronald J. Hedges, now counsel at Nixon Peabody and former United States Magistrate Judge (1986-2007) in New York. Judge Hedges heard a lot of publicised e-discovery cases and always has funny examples to give. I guess that, now that he has to cope with billable hours and clients, we will benefit from his new perspective. Let's just hope he will not hide behind privilege and still entertain us with interesting examples! He made An Update on Current US jurisprudence and was joined by Master Calum U. C. MacLeod, Superior Court of Justice (now in Ottawa, before in Toronto) who made An Update on Current Canadian jurisprudence. They discussed the New US Federal Rules of Civil Procedure and the Canadian law. We quickly realised that Canada is far behind what has developed in the United States – but we are quickly catching up! This session raised a bunch of interesting questions (unanswered, and it is not a blame ;-)) with respect to possible (and existing) cross-border issues. For example, do quebecers have a preservation obligation? If not, what about the documents that are relevant in a trial taking place in other canadian or american jurisdiction?

I had the chance to speak with two of the most knowledgeable e-discovery experts out there: Justice Campbell (Moderator) and Susan B. Wortzman, Lerners LLP. We had to introduce the attendees to the Sedona Canada Principles (TSCP) with a presentation entitled an Introduction to the Sedona Canada Principles: New Ways To Do Old Things. Basically, we went over the principles one by one and gave practical examples for each of them. I invented an acronym to describe what most be remembered from TSCP: CORP for Collaboration, Ongoing Basis, Reasonability and Proportionality. After thinking about it, I should have spoken about the E-discovery CROP!

We explained, throwing flowers at ourselves ;-), the TSCP is a pioneering effort to state some fundamental concepts and best practices for handling electronic evidence and e-discovery issues on a wide range of cases in any jurisdiction. They were prepared by practising lawyers, judges, in-house counsel, and Court and law society representatives from across Canada. We discussed how we have to say goodbye to “semblance of relevancy” and focus on the notion of proportionality, and mainly on the importance of the information for the adjudication of your case. We tried to convey that a Discovery Plan to address issues of preservation of information should be the starting point. My hope was for people attending to understand the new
rules of the road for handling e-discoveries in Canada. Ambitious, I know!

We were followed by Timothy O. Buckley, Borden Ladner Gervais, and
David Outerbridge, Torys, who discussed in an hands-on fashion Litigation Hold Letters and Making/Responding to E-Discovery Requests. They insisted particularly on the importance to consider proportionality and cost benefit in e-discovery files (if you ask me, all files!). They gave tricks on how to narrow the scope of your requests and still get the critical information you are after. What I found the most interesting was the part where they gave examples, templates and precedents developed by lawyers from the Ontario Bar Association and The Advocates’ Society. Good job! That's useful!

My fellows from TSC Karen B. Groulx, Pallet Valo, and Glenn A. Smith, Lenczner Slaght, made an interesting presentation entitled Information Technology for Litigation Management: A Case Roadmap to the Courthouse Door. They spent time discussing their daily job and the way they handle e-discovery files: From client intake and consultation through the collection of evidence, online document repositories, creation of a case strategy,
preparation of pleadings, motion practice, discoveries, and ADR. We came out of this session with the nuts-and-bolts guide to bringing the current mix of hardware and software to bear on all stages of the pre-trial litigation process.

Then, my beloved Peg Duncan, Director of (watch the title!!) Business Opportunities and Emerging Technologies at the Department of Justice in Ottawa. She made her well-known and appreciated Selecting and Working with Computer Forensics presentation.


Constructive comments: the microphones for questions tend to keep the people away from asking question, including me... Perhaps next time, attendees could raise their hands and have a mic brought to them.

Incredible work accomplished by the OBA: congratulations! I really enjoyed all presentations and, from what I heard, attendees too!

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