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covery THE CHALLENGES OF PROPORTIONALITY MELANIE SCHWEIZER: For me . . . one of the ques- tions is at what point in the litigation should that discussion arise, and I tie it a lot to the meet and confer because I think the time to have the proportionality debate is at the meet and confer stage. Once you've produced the documents and you are arguing about whether you over- or under-produced but at that point, I see, as in-house counsel, one of the challenges . . . is convincing outside counsel it is a valuable exercise to meet and confer early in the litigation, because it goes against normal litigation strategy instinct to have that. You want to have some assurance when you are investing this money in doing e-discov- ery process and doing an exhaustive one, that your opponent is going to be doing the same thing. . . . LAURIE MACFARLANE: Lawyers have to have a dif- ferent mindset of proportionality, making strategic decisions at the beginning of the case and not just saying, "I need to see every single document that might be within the universe of documents." KELLY FRIEDMAN: It is really a cultural change for litigators to make a cost-benefit anal- ysis where the benefit is to the ends of justice as Intro Alan D'Silva, partner, Stikeman Elliott LLP sponsored by opposed to their particular case or their client's interests alone, and that is going to be the biggest challenge. ALAN D'SILVA: I will add a bit in the context of class actions. [T]he rules talk about proportionality in and the courts taking into account the cost and the time of having to produce a document. So do the Sedona Principles, but, on the other hand the Sedona Principles talk about the obligation of preserving electronic documents which may be potentially rel- evant to that one step before being relevant. In the typical class action product liability cases or securities case or drug case, you're dealing with dozens, if not hundreds, of employees who have potentially relevant documents electronically, and typi- cally, we're spending a lot of time preserving those documents very early in the process and making sure that nothing gets lost. So the question of proportionality, I think, comes later on when you get into the exchanging of those documents. JUSTICE COLIN CAMPBELL: [T]here is, in Ontario and in four other provinces in Canada, and throughout the common law world, an overarching recognition of proportion- ality. It's been in the rules forever, but it has now come to the fore as an overarching consideration. While I agree with Alan that perhaps there is a different concept of proportionality that comes at the stage of production, more and more, I'm seeing situations in which decisions have to be made very early on. E-discovery has become an integral part of the litigation process but the issues surrounding electronic document retention do not arise only once a lawsuit has been launched. In March, Canadian Lawyer InHouse held a roundtable on e-discovery in Canada, sponsored by LexisNexis Applied Discovery, with a group of experts in the field from private firms, corporate legal departments, and the judiciary. They were clear that advance planning, preparation, and policies are also integral to managing litigation down the road . . . not to mention a whole shift in the way opposing counsel work together. The topics discussed around the table included the areas of propor- tionality, privacy, cross-border litigation, and the ways in which legal departments manage e-discovery. This article offers some excerpts from the lively debate. A more fulsome version of the roundtable can be found online at canadianlawyermag.com/inhouse. INHOUSE JUNE 2010 • 27