Canadian Lawyer InHouse

SEPTEMBER 2015 34 INHOUSE W hen an e-discovery project lands on her desk, Lisa Al- leyne, senior counsel at Bell Canada, focuses fi rst on mak- ing it smaller. "I fi nd our biggest success is doing a lot of the upfront work to make the fi le as small as we can, within reason, before we send it out to try to manage costs," says Alleyne. "That's the leading driver for why the [e-discovery] team was developed. We're always involved [in the process]." As pressure mounts on in-house counsel to reduce legal department costs, they're rolling up their sleeves and taking up a portion of the work involved in the e-discovery process. Often, they're fi nding ways to reduce the scope of their collection work wherever possible. Bell's legal department, like a growing number of others, relies on its in-house e-discovery team to do a fair bit of work before shipping out the review portion of the work to external counsel. To make the work more manageable from the get-go, the key step, "and I think it's still a work in progress for most counsel," is having a direct and upfront meeting with opposite counsel to get as much agreement as possible on exactly what is required for production, Alleyne says. "You want to try to focus those issues as early as possible and narrow what the scope is of what we're looking for." It's a growing trend external counsel are noticing, too. "There's lots of technology now that makes managing e-discovery much easier and cost effi cient for companies, so we're fi nding that some of our clients are bringing the tools and expertise in-house, in terms of the technology, even if they don't have large legal departments full of lawyers who are specializing in that area," says Kathryn Manning, who provides legal advice on e-discovery to law fi rms, corporations, and government at Wortzman. "If the client's in-house resources are such that they've done a proper targeted collection, it makes it easier because we then get a data set that's already been reduced as much as possible," she adds. "We will often then have some other techniques and expertise that we apply to reduce it further before we give it to our review teams because we're always looking for ways to make things effi cient for our clients whether they're in-house counsel or a law fi rm." But in-house counsel should be mindful of the risks they're taking, says Sarah Millar, an e-discovery expert at Osler Hoskin & Harcourt LLP. "The identifi cation and the collection piece is, in my mind, probably where some of the greatest risks lie," she says. "So you can over collect and it ends up costing you when you have to deal with it down the line, or you can under collect, miss stuff, and get called out on it by opposite counsel or the regulator, whoever you're dealing with. "There's absolutely a signifi cant risk in doing it internally if you don't have a good sense of what you're doing," Millar adds. Lloyd Wilks, managing director of CounselQuest Inc., agrees: "If you feel you've got a strong process but you do miss something, the inference is one that you may be trying to hide something or you may run into issues of spoliation." Perhaps no one has been called out in a more public way than the Ontario government for faulty information governance in the recent scandal involving missing e-mails in relation to the cancellation of two gas plants in the Toronto area. South of the border, the U.S. State Department took heat for its inability Understand the challenges and limitations of marshalling a case in the legal department. BY YAMRI TADDESE

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