Canadian Lawyer InHouse

September/October 2019

Legal news and trends for Canadian in-house counsel and c-suite executives

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44 www.canadianlawyermag.com/inhouse FEATURE THE MOST SUCCESSFUL litigation outcomes depend on careful gathering and preserving of evidence and implementation of a strong discovery plan. When social media posts are required as evidence in corporate litigation, a host of complications can arise. Both in-house and external counsel must work together to ensure material is extracted in the best possible way, without alteration of metadata. "The advantage of having a discovery plan when you engage in the process productively with opposing counsel is that it's a bit of a road map for the discovery process that can flush out and address issues before each side devotes a lot of time and energy to producing documents," says Justin Safayeni, a partner at Toronto-based Stockwoods LLP. "If it's done properly, it can ultimately save both sides a lot of money down the road." The discovery plan should include specific details on what social media evidence is going to be produced and preserved so that both parties agree, according to Brian Radnoff, a partner and commercial litigation expert at Dickinson Wright LLP in Toronto. "When individuals are suing large com- panies, particularly in claims that involve personal injuries, social media is often a fruitful Social media e-discovery Planning and executing a strategy for managing online evidence requires careful planning avenue of discovery for the companies," says Radnoff. "You want to make sure you get what you need from the discovery plan and there isn't some dispute about what the other party is going to produce." Failure to implement a discovery plan that includes proper preservation of information can have critical implications in litigation. "The difficulty with social media is that the information is not preserved," says Radnoff. "Once it is disseminated, people just forget about it. Some businesses and individuals have social media that changes constantly so posts made on Facebook or Twitter, for exam- ple, may be lost." Safayeni adds that there are two issues to consider when agreeing upon a discovery plan with opposing counsel. "First of all, is this a case where we can agree that social media posts are going to be preserved and produced? Secondly, how are we going to get that information from you?" he says. In-house counsel is critical in ensuring proper collection of data. Ten years ago, BMO Financial Group launched an in-house e-dis- covery team that manages all phases of the e-discovery process. "We recognized, very early on, the scope of what's possible for the discovery of electronic WHAT THE EXPERTS HAVE TO SAY: JOLIE LIN BMO BRIAN R ADNOFF DICKINSON WRIGHT LLP ROSIE KOGAN MORNE AU SHEPELL "One of my core philosophies is to never recommend a anything to a client that I wouldn't recommend to my parents." "The difficulty with social media is that the information is not preserved. Once it is disseminated, people just forget about it. Some businesses and individuals have social media that changes constantly so posts made on Facebook or Twitter, for example, may be lost." "Internal counsel will understand the production obligations that a company will have and they will also know where to find the types of information that could be relevant to a particular claim."

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