Canadian Lawyer InHouse

17 CANADIANLAWYERMAG.COM/INHOUSE MAY 2017 According to the Association of Cor- porate Counsel Chief Legal Offi cers 2017 Survey, the percentage of in-house coun- sel in Canada who say they are sending e- discovery work to outside fi rms is projected to be 73 per cent in 2016-2017, up from 55 per cent in 2015-2016. The survey shows there has been a drop in work outsourced to LPOs/LSPs from 19 per cent to six per cent. Increasingly, in-house departments are being more proactive about how they handle e-discovery. About eight years ago, Bell Canada's legal department was one of the fi rst in Canada to adopt an in-sourcing model to address all phases of the e-discov- ery process. The legal department started making capital investments in infrastruc- ture and software so it could do more of the work internally. It was born out of the "astronomical costs associated with the e-discovery process," says Melanie Schweizer, vice president, le- gal with Bell Canada. She has accountability across the BCE group of companies, over- seeing litigation and labour & employment for the consumer and advertising law team. "We had a couple of fi les where we incurred signifi cant expense. We looked around and realized we had the expertise internally to do it; we just needed some tools." For in-house lawyers challenged with driving cost out of the business and the legal department budget, tackling e-discovery has been a process of refi ning how the work gets done. At Bell, the cost savings "quickly eclipsed" the cost of making the investment in technology and other resources. "With some of the early fi les eight years ago, we really choked at the cost of e- discovery," says Schweizer. "It's hard to turn around and say that adds a lot of value to the company, spending hundreds of thousands and even millions in certain unfortunate cases, on this exercise." With buy-in from the IT department and Bell's corporate security group, along with using the talents of technically trained peo- ple in the legal team, the legal department began investing in the right tools, including software, to go through documents. "The business case we made has more than justi- fi ed the investment made," says Schweizer. Bell has recently carried this initiative through to the review phase. "We are more hands on in terms of how the reviews are run. We learned from trial and error. We make mistakes with every fi le we do and learn from them and the next one is always better," she says. "We've learned the qual- ity of the review is dictated by the resources you throw at it, especially at the beginning." Schweizer says the team has learned that it's more effi cient if team members are avail- able side by side with reviewers to answer questions in real time and make sure the coding decisions are consistent. "We've even gone so far as to have some- one from the business on a very technical fi le available on site to answer questions in real time, so you don't have reviewers fl agging questions and sending them back and you get an answer 24 hours later. This makes for higher-quality reviews," she says. Schweizer cautions that the in-house model Bell has built only works with the right technical expertise on staff. Bell has a paralegal who is the e-discovery specialist internally. She runs all the document pro- cessing. Bell also has help from other busi- ness units such as the corporate security digital forensics team, which is considered "invaluable" to the exercise. "I think the [law] fi rms would say they get better-quality work as a result of it because the data they get is vetted, so less time and energy has to be spent culling out data that is irrelevant and useless because that exercise has already been done. The fi rms we have the best relationships with see this as com- plementary to what they're already doing," says Schweizer. "I wouldn't say the fi rms are in any way losing work as a result of it. Some of the e-discovery vendors probably are." Where there are "monster fi les" with sig- nifi cant data, Schweizer says, the legal process outsourcing fi rms are "absolutely necessary and complementary to what we're doing." "We still need LPOs, we still need our outside fi rms; we're just using all of them more effi ciently," she says. Anne Glover of Blake Cassels & Graydon LLP has seen the rise of in-house counsel taking on e-discovery and understands law fi rms need to work closely with clients to make it work better for them. "I am seeing clients bringing more of it in-house, which I think is a good idea. With the amount of data and volume of materials, it's getting ex- tremely expensive, and relying on the ven- dor for everything can get very costly, so it's not surprising in-house counsel are looking for a better way to deal with it," says Glover, who is a partner in the fi rm's litigation and dispute resolution group. The Blakes inSource group is a 19- member staff of lawyers primarily focused on document review. In some instances, in-house counsel have sat with Blakes inSource staff while the document review process happens at the fi rm. "We often spend a week or two thinking through what exactly do we expect to see in terms of volume and using the technology to determine that. If everyone is telling me there is going to be 2,000 documents and with my terms we come up with 100,000 documents, that seems wrong," says Glover. "That doesn't seem like a good use of my client's money. So we take a week to deter- mine what we need to do for it to not be so expensive. I'm a big believer in taking it step by step." Glover says she has used predictive coding with great success. "It doesn't work on all documents — Excel not so much — but we've had good success with it on certain fi les. "It's great more clients are bringing it in-house, but where inSource can add value to those clients is being able to walk them through and add value in the sense of thinking through before [they] get to re- view stage," she says. In some cases, in-house departments may think they want to do more of the work themselves, but they just aren't ready. Un- derstanding what is involved can be a steep learning curve. "I've had in-house clients who are When in-house counsel cares about facilitating that process, that's the best, I love it when that happens. The biggest cost-saving measure is an engaged in-house counsel. SARAH MILLAR, Osler Hoskin & Harcourt LLP

• Cover