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TECH SUPPORT The second big incentive is avoiding mistakes. Outerbridge reminded conference attendees of a case in the U.S. in which the judge directed a jury to find against the investment house Morgan Stanley — to the tune of billions of dollars — because counsel had inadvertently (or otherwise) failed to produce relevant e-documents that might have been harm- ful to their client's case. The verdict was changed on appeal — "but the warning shot had been fired," said Outerbridge. "I think one of the reasons why we find e- discovery being such a hot button in the U.S. compared to Canada is because U.S. lawyers are scared out of their minds by things like the Morgan Stanley verdict." No cases have arisen yet in Canada where parties or lawyers were chastised or penalized for e-discovery irregularities, but it's likely when, not if. In the mean- time, there are lots of positive reasons for approaching e-discovery strategically. "When lawyers do approach it in a sys- tematic manner [and are] focused on cost management," said Outerbridge, "they will appear to be doing the right thing and the client will feel well served — which is obviously a bonus." Conversely, Watt pre- dicted, e-discovery will become a growth area for claims against lawyers. So how do you approach e-discovery Request for Expression of Interest (EOI) Legal Agents of the Minister of Justice and Attorney General of Canada The Department of Justice is seeking Expressions of Interest (EOIs) from private sector law rms and law practitioners interested in being considered for appointment as Legal Agents of the Minister of Justice and Attorney General of Canada. These agents provide the Government of Canada with legal advisory, real estate or litigation services in a broad variety of practice areas across the country. The Department of Justice relies upon in-house counsel, as well as private sector law rms and law practitioners, to support the Minister of Justice and Attorney General of Canada in his responsibility for the legal affairs of the government as a whole and in the delivery of legal services to individual departments and agencies. Interested law rms and law practitioners are invited to consult the Department's website at www.justice.gc.ca under "Work for Justice" for details regarding the application process, qualications, locations and a list of relevant areas of expertise. Applicants will be placed on an eligibility list and may be subject to further screening and evaluation as dictated by operational needs. Applicants must be willing to comply with minimum requirements in order to be considered for an appointment. Please note that this process does not apply to prosecution work. Information on becoming a Legal Agent of the Director of Public Prosecutions can be found at http://www.ppsc-sppc.gc.ca/eng/aaf-man/index.html. This EOI does not obligate the Department or the Government of Canada in any way and is not to be construed as binding upon the Department or the government. Law rms or law practitioners having already expressed their interest through this process need not re-submit unless they wish to revise previously submitted information or register interest in additional practice areas. For more information on the role of Legal Agents, please visit: http://canada.justice.gc.ca/eng/dept-min/la-man/index.html. Karen Beasleigh Tel: 613 946-7642 Fax: 613 960-1857 E-mail: EOI-EDI@justice.gc.ca strategically? For Outerbridge, it comes down to two rules: be prepared and be systematic. "For every e-discovery choice you have to make — and that's what e- discovery is all about: a series of choices about what you're going to produce, how you'll produce it, who you'll use to produce it — you have to systematically analyze that choice by thinking, 'Should I seek to reduce costs here?'" Being prepared, at one level, simply means understanding the issues. "If you enter into a case and e-discovery issues arise and you have to learn about [it] on the spot . . . you're obviously not in as good a position to give advice as you would be [if you were well versed ahead of time]," Outerbridge pointed out. Start by gaining familiarity with guidelines laid out by the Sedona Can- ada group, a working committee of the U.S. Sedona Conference on legal practice issues (more at www.lexum. umontreal.ca/e-discovery/SedonaCanada Principles01-08.pdf). Firms should des- ignate at least one partner to keep up with ongoing developments and regu- larly brief others, he said. It also helps to have an arsenal of e- discovery-related precedents and check- lists on hand. The OBA committee has developed several model documents. It's developing others, including a compre- hensive checklist of factors to consider when making decisions about e-discov- ery, and a top 10 list of ways to reduce costs (www.oba.org/En/publicaffairs_en/ E-Discovery/model_precendents.aspx). Outerbridge worked through one telling example of e-discovery analysis: whether to produce backup tapes, which are particularly costly to restore. The best approach: long before any case arises, cli- ents should establish a records-retention policy under which backups are kept 26 JANU AR Y 2009 www. C ANADIAN Law ye rmag.com ntitled-1 1 12/11/08 4:39:32 PM