“The breadth that we take in our approach from the very beginning in discovery planning really has a trickle-down effect on all of the costs going forward,” says Molly Reynolds, senior associate with Torys LLP in Toronto.
Reynolds says that planning requirement and meeting and conferring with opposing counsel that goes along with the plan helps to focus and to think about where relevant data might be.
“It is very helpful, even in smaller document cases, but, of course, in large document cases where you might have to be searching across many different employees or custodians, [to look at] at many different data sources,” she says. She also says that it’s also useful to think about what to do if that particular search pattern is wrong.
“Build in the opportunity to come back and discuss when what you thought was proportionate and reasonable at the outset [and then it] turns out that it’s not,” says Reynolds.
She says that, because older rules around producing all relevant documents pre-date the era of email, when hundreds of documents are generated in the course of a day with multiple versions, plans between opposing counsel are useful to help narrow down who the key witnesses and holders of information may be.
Reynolds says it can also be beneficial if counsel can look at the files of those key individuals before agreeing to look at all emails of everyone in the organization. That could mean focusing in on time periods identified in the pleadings and narrowing in on documents where the timing is relevant.
The technological expertise of counsel when it comes to doing e-discovery can have an effect on the planning process, says Marlon Hylton, partner and head of discovery management with Cassels Brock & Blackwell LLP in Toronto. “A big part of it is the bar still catching up with the nuances of discovery plans.”
Hylton says that unless counsel understands the nature of the documents in question, which can include things such as embedded reports, it can create an onerous burden to those trying to collect it.
“For a discovery plan to be good, it requires a shift in thinking,” says Hylton, [such as] “a much earlier contemplation of what is it that we have that’s relevant to the issues in this case — what format is it in, where does it reside in our client’s IT infrastructure — because all of that will determine what we have to do to get it.”
Hylton says that lawyers should remember to include things such as privilege clawback provisions so that, if a privileged document slips through the cracks, the discovery plan is a great place to deal with the issue.
“It surprises me how many people don’t,” Hylton says of including such provisions.
In many cases, the volume of data means that external service providers are necessary, which can go to the collection stage if there’s a sizeable enough volume or if it’s of an unusual file type that needs additional help in extracting and restoring it, all of which adds to the expense of the discovery process. The costs associated with the discovery process can affect the ability for a case to settle, Reynolds adds.
“[The parties involved] may feel like they’ve put so much in the litigation that they may not want to compromise at a lower amount.”
Reynolds says that, when looking at the key files or date ranges first, it doesn’t mean that they can’t go back to search for other documents. She points to a fictional example of litigation over a contract signed in 2008 but the breach-of-contract litigation didn’t occur until 2015.
“Just because a contract was signed in 2008 doesn’t necessarily mean that we’re searching the organization’s files for anything related to the contract from 2008 to 2017 — we may just need to start at 2015 or shortly before and figure out what went wrong,” she says.
Honing in on specific time periods allows for fewer documents to be produced from the outset, Reynolds says, which is a cost savings.
“If we collect everybody’s emails for an extremely long period of time, we have to figure out how we’re going to ingest that data,” she says.
Deciding what to do with the information not needed also needs to be determined in the event that they do need to go back to it. Reynolds says that over-collecting at the outset affects how much they need to process and store, which adds to expense. Reynolds warns about some plans that try to create carve-outs that say that nothing in the plan changes an obligation to produce.
“It’s almost useless to have a discovery plan that doesn’t change your obligation to produce everything relevant, because then you have no proportionality agreement,” says Reynolds.
The mandatory nature of Rule 29.1, which requires a discovery plan be filed lest the action grind to a halt, is something that does have its critics in the legal community.
“When it came out, it was well-intentioned,” says Peter Carey, partner with Loopstra Nixon LLP in Toronto.
“It’s trying to deal with problems on a prospective basis that might come up, but in practice, far too often, it becomes a method by which a party that is interested in delay can delay an action for months by refusing to use a discovery plan.”
Carey says the rule is frequently abused, and when he was on the executive of the Ontario Bar Association civil litigation section, there was almost universal feeling that the rule should be rescinded, with some who wanted the rule modified, without agreement on how to do so.
“One hundred per cent of lawyers contacted did not like the state of Rule 29.1,” says Carey.
“In my view, it injects a level of tactical manoeuvring that wasn’t previously present in the entire litigation process.”
Carey says the bulk of cases don’t require plans because they are simply not big enough and don’t require another level of conflict into the process.
Reynolds says she remains in favour of the mandatory rule because it creates a procedural stage where counsel has to come together and communicate, which works well in most cases. Where it falls apart is in the odd case where counsel simply sends a plan to the other for review, which is why Reynolds prefers a face-to-face meeting.
“Having these conversations proactively at the outset allows us to hopefully avoid motions, complaints and disputes down the road when the documents produced were not what the other side was expecting,” says Reynolds.
“If it wasn’t mandatory, in those unusual cases where you don’t have a constructive relationship between parties, we would lose that opportunity entirely.”
Hylton agrees that the rule is useful and while it may require some tweaks, it would be imprudent to get rid of it entirely.
“While the rule is mandatory, it requires a shift in the way we think about our cases, and not many people are prepared to recognize that the shift is necessary for the rule to make sense,” says Hylton. “That’s going to take time.”