Canadian Lawyer

w w w . C a n a D I a n L a w y e r m a g . c o m J a n u a r y 2 0 1 5 45 further entrenched the rules of proportionality laid out in the Sedona Principles. While the Ontario Rules of Civil Procedure state that parties "shall consult and have regard" to Sedona, Mitchell insisted that "parties are required to comply with the Sedona Principles and failing to do so is a breach of the rules." Dan Michaluk, chairman of Toronto-based Hicks Morley's information management and privacy practice group, says it can be difficult for parties to come to proportional solutions. "Often parties get bogged down when it comes to implement- ing ideas about proportionality," he says. Michaluk says in order to reach proportional solutions to discovery issues, lawyers have to first refocus on the goal of the litigation. "It really requires a genuine commitment to getting a matter to trial," he says. "Figuring out what's pro- portional and what matters tends to be a lot easier if you start with that objective." And the biggest hurdle to getting into that trial-focused mindset, according to Michaluk, is the strategic use of proce- dure. "What we often see is that parties will use procedure as part of their litigation strategy. And I think that should obvi- ously be discouraged." Even when parties come in with good intentions, they sometimes lose sight of the end goal. "Even if you're not trying to use the process to your strategic advan- tage, sometimes you just lose sight of the trial," says Michaluk. Manning says one simple way to avoid problems with pro- portionality in e-discovery is to plan ahead. "You need to talk to your client early on and really learn more about your case sooner than you might have before," she says. "Talk to their IT department. Find out what records are out there, find out where they're stored, find out what it means to get them back." Michaluk agrees. "Early case analysis is essential to finding proportional solutions, because if you don't know where you're going, you can't create process to get there," he says. But as any good litigator knows, things can change rapidly as a case unfolds and documents are produced. Lawyers need to make sure communication with the opposing side doesn't end with a single meet-and-confer. "That's something that the Sedona Canada Principles talk about — meeting early and meeting often," says Manning. Instead of viewing a discovery plan as a hurdle to overcome, lawyers should think about it as an ongoing process that occurs throughout a litigation. "You don't just talk about these issues at the beginning of a litiga- tion and never talk about them again," she says. Are litigators getting the message? According to Manning, some are and some aren't. She says judgments from the courts like Siemens and Palmerston Grain are waking more and more lawyers up to the need to create a discovery plan that bakes proportionality right in. "The more that that gets out there to the litigation bar, the more they're going to have to pay attention. So I think people are more attuned to this," she says Instead, she sees a bigger problem with lawyers simply ignoring e-discovery altogether. "I think sometimes you see the opposite, which is people burying their heads in the sand and saying, 'I don't have to do any electronic discovery,'" she says. "It's hard to ignore, but I'm sure there's some lawyers out there trying very hard." More changes are on the way for litigators when it comes to proportionality. In December, a new draft version of the Sedona Canada Principles was released for public consultation. And as access to justice issues continue to dominate the legal agenda, expect the bench to continue hammering home the importance of proportionality. "We can't afford to litigate in a traditional way. We need to build proportionality in because we can't run a small, simple case through a one-size-fits-all procedure," says Michaluk. "That means those small, simple cases never get heard." Early casE analysis is EssEntial to finding proportional solutions, bEcausE if you don't know whErE you'rE going, you can't crEatE procEss to gEt thErE. DAn MIChAluk, hicks Morley What do your clients need? The means to move on. Guaranteed ™ . Baxter Structures customizes personal injury settlements into tax-free annuities that can help your clients be secure for life. Need more information? Contact us at 1 800 387 1686 or baxterstructures.com Kyla A. Baxter, CSSC PRESIDENT, BAXTER STRUCTURES ntitled-1 1 13-09-16 2:53 PM

• Cover