Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50881
cases, that don't know any of this, so they don't do anything at the beginning, and that is where I think part of the culture has to change. A NEW 'MEDIATIVE PROCESS' FRIEDMAN: The reality is that clients like Melanie will force their external counsel to help them make the proportionality decision at the preservation stage, especially in a class action, because there is really no incentive on plaintiff 's counsel in a class action to give any leeway in terms of what should be preserved. I think that the result is that for private practitioners like myself, we have to step up and help our clients make those kinds of decisions. It's a business risk like any other, informed by case law, legal knowledge, as to what is a reasonable thing to do. SETTLEMENT VERSUS LITIGATION FRIEDMAN: I try to tell major corporate clients that is where access to justice comes in for them. . . . Access to justice is getting your case heard on the merits, not paying ransom, not paying $400,000 because you know it is going to cost $1.4 million to do the preservation and production properly, and they are only asking half a million, so pay them off. . . . Whether you have the money to finance litigation or not, you ought to have a right to be heard on the merits and determined on the facts, not on the costs of the e-discovery. SCHWEIZER: [I]nvest some money and time in having a good in-house e-discovery process so that you can do it effi- ciently in a defensible way, efficient and cost-effective. It won't eliminate all the problems. MACFARLANE: We want to be fair and fight on principal where it is required and resolve where we don't need to look at the 3,000 documents because we know the facts. CAMPBELL: I think we have an opportunity here to try to do something else and get some level of co-operation earlier on, but from what I'm seeing, we still have lawyers and clients, perhaps not at the big level, I keep coming back to the smaller CAMPBELL: One of the problems under our system in Ontario, and true in most of the Canadian provinces, is getting access to a judge or master at a very early stage to get some help. . . . I think if I look forward five years, if there isn't a private enterprise group that does this, the courts are going to have to assist in what I call a mediative process to drive consensus at an early stage, because we can well see that, as we move from this area that has been adversarial to a more co-operative area, you need some neutral assistance to drive a consensus and perhaps agreement. That hasn't been the traditional role and it is so very difficult for a court, ahead of time, to make some kind of black and white ruling. That's almost impossible, but what we can do is help people get to agreements on their own which then can be incorporated into court orders. FRIEDMAN: The reality is, we're probably going to have to have a system where the parties pay for a special master-type system, that some states have that works quite well, where some masters or some other officials have some expertise in the area, but their time is paid for by the parties, which again, is very difficult in class action context. SCHWEIZER: It is certainly more palatable to do it at that stage than to incur the cost of the e-discovery process and get to arguing refusal motions and production motions, which in and of themselves can turn into monstrosities. But you have already also incurred the cost of doing it one way, only to find out that perhaps the decisions you made were not the right ones, and you could have saved a lot of money earlier. PROTECTION OF PERSONAL INFORMATION MACFARLANE: I think, in a lot of lawsuits, people overlook the privacy issues. And most organizations are governed by either federal or provincial privacy legislation and generally, it says you cannot produce a person's personal information unless compelled by law. People have to be alive to thinking about the privacy concerns and not just defending the lawsuit. D'SILVA: The related issue is, no matter how many times you tell people that their work e-mail is for business and not personal, every injunction I have done, every forensic review I have done of e-mails, it is clear people use business e-mails for personal. Some of them, I don't know how they have time to do any work. FRIEDMAN: I try to immediately locate and identify the INHOUSE JUNE 2010 • 29