Canadian Lawyer

44 A P R I L 2 0 1 9 w w w . c a n a d i a n l a w y e r m a g . c o m Every lawyer will have to be trained in it, he says, and their clients as well, including companies that often "don't have a clue how much electronic data they have" and may face expensive lawsuits if security is breached. "Privacy legislation is coming in, which is scary for most corporations." Toronto lawyer Susan Wortzman recalls one client who, in preparation for discovery, had printed off email messages, then scanned them and sent them to her offices. Wortzman is a partner at McCarthy Tétrault LLP and the founder of MT>3, a division of McCarthy Tétrault that specializes in e-discovery, information governance and the management of digital information; she is also the author of the third edition of E-Discovery in Canada. Aside from the cost and bother of printing off the email mes- sages and then scanning those messages when they started as digital, "you also lose the metadata," says Wortzman. "You're los- ing valuable e-discovery information by doing that." Yet, despite the ongoing challenge of training clients, as well as lawyers, in handling electronic data, "I think we've hit . . . the point now where we can say that most lawyers are understanding the e-discovery process and saying, 'we have to get on board with this,'" she says. Discovery technology today Dera Nevin, an e-discovery lawyer and associate in Baker & McKenzie LLP's information technology practice in Toronto, describes the technology for e-discovery as having evolved in three main ways. "First, the technology can handle more kinds of data than before," she says. "Think emails and social media and data from mobile phones. It can help understand the facts of the case by having everything in one place. "Second, the technology now incorporates machine learning [a form of artificial intelligence], natural language processing and analytics." These tools can visualize how people communi- cate by email, group documents together by concepts and discover quickly whether there are communications missing. "Using some of all these components in every case helps bring the evidence alive earlier in the discovery process." This works not only on "outbound" discovery, meaning what a lawyer is giving to the other side, but also on "inbound" discovery, which is what the other side is giving you. Third, Nevin says, there are e-discovery offerings in the "cloud" and more service providers. "That means more options for law firms in renting versus buying and makes the technology available in other contexts." That makes it easier to put a small matter through this technology and reap the benefits, she says. Finally, a lot of the technology today is "just better designed," she says, making it more intuitive to work with and easier to look at. "Some is even connected to your mobile, so you can get alerts and other notifications." Wortzman describes different ways of training a machine (i.e., machine learning) to do e-discovery. The first is with a collection of relevant records that may be used as a seed set to train the computer. Another way is to use a team of subject matter experts to start the review, who will code records and train the computer in that manner. Having a seed set of important documents is a good start, and "we usually have those from the client." One new trend in e-discovery technology is email thread- ing, says Lara Mason of Norton Rose Fulbright LLP in Cal- gary, who co-leads the firm's global e-discovery group with Lynne O'Brien in the Toronto office. "We use email threading to suppress unnecessary email and review," says Mason, adding that its a tool that can also be used to tell a story in a concise way. "It's one of the developments that helps deal with voluminous email." O'Brien says there is also an increasing interest in the use of text messaging in discovery and in social media. "It's still an evolving area, and the e-vendors are evolving, but there's an increased prevalence in those sources of data." E-discovery technology can also be used to identify gaps or inefficiencies in opponents' production or to find "hot" documents there, says Mason. Although historically e-discovery review may have been used only on one's own documents, "now I find it's being used on both the defensive and offensive" sides, she says. "You're able to be creative when reviewing your opponent's production . . . and can use whatever technologies and processes might be helpful in the particular instance." Choosing tools and vendors So many tools, so many choices. Anne Glover, a partner at Blake Cassels & Graydon LLP's Litigation and Dispute Resolution group in Toronto and practice group leader of the Blakes inSource team, notes that there isn't just one program that a lawyer or firm must buy and that the annual LegalTech conference in New York contains "floors of programs. They're all expensive, at different price points" and some firms may choose to outsource e-discovery to a vendor, she says. "It's a challenging time for some firms to discern what to do." Glover identifies security risks as one concern in choosing tools. "We [at Blakes] run our tools by our IT security group to make sure . . . they're up to the standard required of us as a law firm," she says. "There are a lot of great pro- grams, but some are new" and perhaps not "at the level you would need for client data." Larger firms will have the capability to do most everything regarding e-discovery in-house, says Norton Rose's Mason. "There can be situations where a certain firm has an expertise in e-discov- ery and can be hired to do that, but we find it beneficial to do both e-discovery and the litigation process" inhouse. Smaller firms may choose to piggy-back on a larger firm for "You're able to be creative when reviewing your opponent's production . . . and can use whatever technologies and processes might be helpful in the particular instance." Lara Mason, Norton Rose Fulbright LLP

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