Legal news and trends for Canadian in-house counsel and c-suite executives
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costs north of the border can be on par with what they hoped to avoid by settling in the U.S. "When the U.S. [counsel] is sitting down and looking at the defence of claims, they're look- ing at precluding claims worldwide," says Buckley. "They have to under- stand that Canada may have different procedures, may have different dam- ages awards, but has the prospect of the same defence costs and the same requirement of management time and operations time in defending a case. So in some respects, they should look upon us as another state with a popula- tion of [33 million] people." Similarly, Kent urges in-house coun- sel to put their minds to the future when it comes to the discovery process. In parallel U.S.-Canadian class actions, discovery typically first takes place in the U.S. That means Canadian class counsel may ask defendants to simply turn over all documents produced for the U.S. action. Kent describes such requests as "good news, bad news." On the plus side, the information has already been acquired, organized, and stored, which leads to an overall cost savings. Unfortunately, this type of request can also lead to the production of information that is unrelated to the Canadian action. That leaves counsel with a somewhat perplexing problem: "Is somebody going to dive back into that stuff and try and sort out relevance for the millions of documents in the box full of CDs?" asks Kent. "That's kind of expensive." That's why he urges Canadian corporate counsel to keep an eye on any actions arising south of the border that may migrate north. If Canadian counsel can alert their U.S. colleagues early on, the U.S. legal team can add codes indicating relevance to Canada during their own document- collection process. "That will make it a push-button operation later, if they have to produce in Canada, instead of a hideous scenario of massive and wasted expense," he says. Collaboration like that can certain- ly help ease the burden of parallel class actions, but it's equally important for counsel to identify areas where a uniform approach simply won't do. Andrew Trask, a class actions defence lawyer at the McLean, Va., office of McGuireWoods LLP, notes key dif- ferences in Canadian and U.S. class actions rules that will force counsel to take different approaches. He says Canadian class actions allow defence counsel to probe the merits in a way that is unavailable in the U.S. Specifically, part of the test for certi- fication in Ontario's Class Proceedings Act — which is in line with similar legislation in other provinces that use CROSS-BORDER LITIGATION INTERJURISDICTIONAL PRACTICE AND PROCEDURE Kenneth C. MacDonald Guidance on all aspects of cross-border litigation for inter-provincial, international and multiple jurisdictions Cross-Border Litigation: Interjurisdictional Practice and Procedure offers practical guidance on all aspects of cross-border and inter-provincial litigation, covering everything from deciding where to commence litigation to enforcement of a judgment. It is an excellent handbook to help you understand the legal considerations involved and map out the right course of action, such as: • where is the best place to sue strategies for challenging the plaintiff's choice of venue how to ensure proper service outside your jurisdiction how to determine which jurisdiction's laws apply obtaining evidence from other jurisdictions ORDER YOUR COPY TODAY Hardbound • 424 pp. • 2009 • $120 P/C 0291010000 ISBN 978-0-88804-484-6 • • • • • • • • responding to requests for evidence from other jurisdictions pleading and proving foreign law pre-judgment cross-border remedies enforcing foreign judgments at home and domestic judgments abroad ... and more! canadalawbook.ca For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book, a Thomson Reuters business. Prices subject to change without notice, to applicable taxes and shipping & handling. CL1210 18 • DECEMBER 2010/JANUARY 2011 INHOUSE