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as true copies for use as evidence or, more expansively, as "broad enough to include a wide variety of exhibits and demonstrative aids." The court observed that the invoices submitted by the vendors were "notable for their lack of specificity and clarity as to the services actually performed" and "provide no indication of the rationale for these activities, nor their results in terms of the actual production of discov- ery material. the conversion of native files to tif format and the scanning of documents to create digital duplicates were recognized as the taxable "making copies of material. "neither the degree of expertise necessary to perform the work nor the identity of the party performing the work of 'mak- ing copies' is a factor that can be gleaned from the statute permitting taxation." Although some lower courts had permit- ted the taxation of electronic discovery costs on the basis of the "indispensability" of the services to the discovery process, or on the basis of "efficiencies and cost savings resulting from the efforts of elec- tronic discovery consultants," the appeal court decision makes clear these were not appropriate reasons or a sufficient basis to permit cost-shifting. As more activities are undertaken by The Court of Appeal observed that " vendors, the costs associated with litiga- tion are shifting to vendors, and these may not be taxable. In footnote 1 to Race Tires, the court cited a study that noted in 2009 electronic discovery vendors had revenues equaling approximately $2.8 billion. This is an indication of what' tion to what is happening with e-discov- ery costs and why they occur because, unchecked, e-discovery can outstrip the value of claims, acting as a barrier to justice. However, the ability to under- stand the requirements of electronic data processing are often beyond the com- petence (or interest) of lawyers and law clerks. Even so, courts have recognized that e-discovery is "indispensable" to the litigation process. ESI vendors do not share in the risks of As practitioners, we need to pay atten- s at stake. litigation. Often, the relationship is asym- metrical in that parties' litigants and their counsel are not buying services from a position of knowledge. There are no stan- dard billing practices, and no ethical stan- www.CANADIAN Lawyermag.com M AY 2012 21 ntitled-1 1 12-04-10 6:16 PM " The court held that only dards required of industry participants. I have long noted that e-discovery is the only aspect of the evidence management supply chain that is not subject to regula- tion or oversight. Many lawyers prefer to ignore this reality, including by choosing to not par- ticipate in the discovery of electronically stored information. Although as lawyers we may not like to use vendors, they are nevertheless essential. Our own Canadian vendor industry is suffering because of a lack of domestic products and expertise and because it is not evenly distributed across the country. It is at risk of being undersold by foreign entrants into the marketplace. We must also address questions that have implications for our clients. Is the use of e-discovery vendors unbund- ling? Do some vendors engage in the unauthorized practice of law when they advise lawyers what to do? Are these activities insured, and if so, by whom? support anymore I don't have tove to m REASON #4 maanage IT ppor ym

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