In the case of Szeto v. Dwyer 2010 NLCA 36 (CanLII), the Court of Appeal was asked to consider an interlocutory decision of a trial judge ordering answers by the plaintiffs (appellants) to certain interrogatories delivered by the defendant (respondent) in a personal injury claim. Due in part to its analysis of proportionality, the Court ultimately declined to order answers to the interrogatories.

Accepting that “the interpretation and application of a particular rule of court must be undertaken in the context of the rules as a whole and in accord with their underlying spirit and purpose,” [para 52] the court first undertook a significant review of the concepts underlying the doctrine of proportionality. The court confirmed that for rules involving discretion, in this case the rules regarding pre-trial discovery and disclosure, this includes an “application of an underlying principle of proportionality which means taking account of the appropriateness of the procedure, its cost and impact on the litigation, and its timeliness, given the nature and complexity of the litigation.” [para 53]

Although the Newfoundland and Labrador rules of court do not expressly include the doctrine of proportionality (in contrast with most of the other jurisdictions in Canada), the court confirmed that this principle is nevertheless derivable from the underlying purpose and structure of the rules and the approach to their application in the case law interpreting them. It held that the following general principles and concepts are relevant:

1.  The fundamental purpose of the rules of court is to ensure an expeditious and cost effective determination of the merits of each case that is fair to all sides;

2.  The rules cannot be interpreted selectively and in isolation but must be read in conjunction with the rules as a whole;

3.  The rules involving discovery and disclosure by their nature are inherently flexible in their operation and application. They are not intended to have invariable application in every case regardless of circumstance or to dictate a specific result in a particular case;

4.  The decisions made on procedural matters involving the exercise of discretion require a balancing of the interests of each party against the interests of the others with a view to achieving a result that is fair to all sides. 

5.  Individual rules respecting disclosure and discovery have built within them the idea that their invocation may not always be appropriate in particular circumstances. The principle of proportionality underlies the interpretation and application of these rules. The court must always consider and take account of proportionality, in the sense of the appropriateness of the procedure, its cost and impact on the litigation and its timeliness, in the context of the nature and complexity of the litigation. [para 55]

The court concluded that the principle of proportionality applies not only to the parties, but to the court exercising a discretion under the rules. In its decision, the court emphasized that the principle of proportionality has general application to rules involving discretion. It went on to caution that “a party invoking a rule, taking a position or making an application that is ultimately determined to be not in accordance with the proportionality principle should anticipate that there may be adverse costs consequences”.  [para 54]

This case then stands for the proposition that parties and their counsel must proceed with the doctrine of proportionality in mind. More significantly, it assists counsel with understanding how this doctrine may be applied by courts in the context of pre-trial discovery and disclosure.

Following the IQPC conference in Toronto in late June, Susan Nickle was interviewed by Julius Melnitzer for an article published in the Legal Post section of the National Post on July 7, 2010.

Titled “Records Management Key to Navigating Lawsuits”, the article explores the corporate risks of not having a well-managed records management program. This is consistent with Wortzman Nickle’s position that an enforced, defensible records retention policy is the foundation for a streamlined, cost effective, and efficient e-discovery process.

However, it is not just litigation risks that are mitigated by such policies. Corporations who face competition complaints, regulatory investigations or audits also benefit enormously from good records management. Further, there are numerous and compelling business efficacy reasons to implement good policies, including significant increases in employee productivity and reductions in data storage costs.

In 2010, Wortzman Nickle has seen a significant increase in corporate interest regarding the drafting and implementation of records management policies and protocols. A successful records management regime requires a healthy marriage between legal and IT. We speak the languages of both domains. Please contact our firm for details regarding the essential aspects of good records management.

Well-positioned on the heels of the G20 Summit in downtown Toronto comes Legal IQ’s (a division of IQPC) conference to assist corporate counsel in curtailing the rising costs of discovery. From June 28th to 30th, e-discovery experts (and those wanting to be in the know) from across North America will meet at the Sheraton Toronto Centre to address this very timely issue. 

What is interesting about this conference is its very balanced speaker mix of in-house and external counsel from private and public organizations, judges, and e-discovery vendors, from across both Canada and the United States. Primarily conducted in workshop and panel format, this conference emphasizes a very practical approach to minimizing the costs of e-discovery.  

Topics will include:

• Overcoming eDiscovery and informational challenges
• Conquering new sources of eDiscovery: Facebook and other social media
• Aligning the interests of in-house counsel, outside counsel and IT teams
• Building cutting-edge programs with a winning team that will reduce costs
• Solving eDiscovery problems in M&A and departing employees
• Using eDiscovery in criminal, fraud, tax and white collar crime cases
• Implementing the Rules of Civil Procedure to contain costs for corporations and governments

As a member of the Advisory Board for this conference, our Susan Nickle is co-facilitating a workshop on “Early Case Assessment Strategies and the Pitfalls of Disjointed Collection”.  

We’ll keep you posted on key (perhaps contentious?) issues arising at this interesting conference

When asked about spoliation cases in Canada, I was interested to hear Justice Campbell’s opinion that preservation of ESI was being practiced because of our discovery rules. I mentioned that in my practice, I have seen poor preservation practices, although some organizations and counsel are improving in this area. Cost sharing and cost shifting are also being considered more in Canadian cases.

While Canadians may look at US jurisprudence for guidance in e-discovery, the US cannot assume that US attorneys know Canadian law. When it comes to assembling a team for cross-boarder litigation in Canada, the US would be wise to use Canadian lawyers experienced with e-discovery issues, and use Canadian vendors and specialists in the e-discovery field. Similarly, Quebec counsel should be part of the legal team to address the very different civil law which Quebec practices.

To hear this interesting podcast, please click on the attached link: http://www.esibytes.com/?p=1276

The educational component included Wortzman and Nickle’s “E-Discovery A to Z” presentation, with able assistance from Caskey. While our Review Team generally focuses on the review aspect of the e-discovery process, they are also involved on different matters with the preservation, identification and collection stages.  Others also assist us with Records Management Policies.  This was an opportunity to ensure that the entire Team was up to speed on the e-discovery stages and cutting edge technology. 

The educational component was a two-way street, and it included Wortzman and Nickle obtaining information from our team. Well-versed in and experienced with numerous review platforms and e-discovery software, we solicited and received our review lawyers’ candid opinions about what technology is the best of the best.  

Our special guest, Jonathan Redgrave, is a well-known e-discovery guru from the Washington D.C. area and a good friend to our firm. Presently practicing with Nixon Peabody, he has previously appeared in our blog as a guest contributor. Jonathan joined us on Tuesday night to provide our team with the emerging e-discovery trends from south of the border. He is an engaging speaker and as usual, charmed the crowd.

The social aspect of the evening afforded an opportunity for our various review lawyers to get to know each other, and the Wortzman Nickle lawyers, legal analysts and staff better, outside the context of document review projects.  We have a very interesting and accomplished group of lawyers who work with our firm. They include a published writer, a film-maker and a former Olympian (a silver medallist no less!) to name a few. Many of our Review Team lawyers have been with us since we opened our firm in October 2007 – a few others worked with Susan Wortzman for years prior to that. With their sound legal and technical judgment, dedication to individual files, and e-discovery experience, our team really is the Dream Team for e-discovery.

Most recently, the BC Court of Appeal in Dykeman v.Porohowski, [2010] B.C.J. No. 113 judicially considered the issue of whether “Internet postings” were listed with sufficient description on the list over which privilege had been claimed. The Court of Appeal referenced the Sedona Canada principles when it held that the postings has not been adequately “listed” for the purposes of British Columbia’s R. 26.  Similarly, the Ontario Superior Court of Justice in Re: j2Global Communications Inc., and Protus IP Solutions Inc., [2009] O.J. No 5131 held that the applicant had proposed no search criteria for the requested document search as contemplated by the Sedona Canada Principles. 

Lawyers beware: if you have not read the Sedona Canada Principles and are not applying them in the context of e-discovery, the courts may  be taking that into consideration when making orders. If you require litigation support with your electronic discovery, contact Wortzman Nickle. 

However, only 60% of those policies contained a litigation readiness component, and only 20% of those utilized litigation readiness software.  Further only 38% of those companies had a litigation response team in place to handle all of the e-discovery phases.

Also interesting – in the panel’s view (and these were employees of a service provider) the effectiveness of a litigation readiness program is based 90% on the policies and the team put in place, and only 10% on the software. In their words, technology is merely an “enabler” in the quest for defensible litigation readiness.

More later.