The Ontario Superior Court recently held that $1 million to conduct a document review is not, per se, unreasonable. In Ernst & Young Inc. v. Essar Global Fund Limited et. al. the Defendants argued that they should not be responsible for paying the Plaintiff’s document review costs because their own review costs were significantly less.
Justice Newbould, however, disagreed. He suggested that an apples to apples comparison was not appropriate in the circumstances. He stated that “[a] comparison of numbers alone does not permit a conclusion that the expense incurred by Algoma … was an unreasonable expense”.
While we often budget for document review of our own client’s records…. beware – the buck doesn’t necessarily stop at the end of your own document review.
Time again to dust off our crystal ball and give you our guaranteed predictions of what you will see happening in e-discovery in 2017:
1. The Cloud
We have already started seeing a move away from on-premise e-discovery installations. With kCura’s recent move to hosting on Microsoft Azure, combined with Microsoft’s rollout of Canadian data centres earlier this year, we expect to see more law firms ditching their current in-house installations and moving to cloud based e-discovery software.
2. More Options for Canada
We predict a greater acceptance that cloud based software is just as secure, if not more secure, than in-house installations. We have been told by several south-of-the-border e-discovery software vendors that they have plans to launch Canadian data centre hosted installations in the coming year. We can’t divulge who they are (that would spoil the surprise), but look for more options next year.
3. More Discovery Plans
The OBA Civil Litigation group has prepared a paper questioning the value of the current rules relating to discovery plans. We see an increasing need for effective discovery planning. E-discovery is not going away as data volumes increase. Different forms of communication are developed all the time. As awareness of discovery plans and their usefulness for even small cases increases, more and more lawyers will start to use them, and start discussing scope and exchange of documents sooner, exactly the purpose of the discovery plan.
4. Better Search
Although keywords will remain the dominant form for searching for relevant information, we expect to see better workflow surrounding keyword searches, and more use of other search technologies, such as conceptual categorization, assisted review, and machine learning. We are already past the adoption curve, and 2017 will be the year TAR becomes mainstream in Canada.
5. Better Organization
Information Governance has become a catch phrase. Most boards now discuss how they can better govern their information. While the growth has mainly been due to an increased awareness in cybersecurity, e-discovery will benefit from better organization of the information and less ROT to sift through to find what we need.
After a couple of years of lackluster innovation and somewhat slow growth, we expect 2017 to be a watershed year for e-discovery in Canada.
 We guarantee that our predictions might or might not come true
Commonwealth countries continue to approve technology-assisted review (TAR) for e-discovery. In mid-2016 we started to see cases coming from the UK courts endorsing the use of TAR; recently, Australia followed suit.
In one case, the Australian Federal Court ordered one party to disclose several specific aspects of its TAR workflow to the opposing party. Meanwhile, the Supreme Court of Victoria went so far as to endorse the use of TAR to review 1.4 million records, and appointed a special referee to manage the process (see McConnell Dowell Constructors v. Santam Ltd.).
We already know that the use of TAR and predictive coding is prevalent in the United States (how else could the FBI have reviewed 650,000 emails in only 9 days?). In fact, US judges have not only given TAR their seal of approval, but have actually directed parties to use it. In Canada, however, our courts have not been so bold. We know that parties to litigation are slowly starting to accept and use TAR, but to date we have not seen any orders from Canadian courts requiring it, or specifically endorsing its use.
With so many matters being case managed, this is the perfect opportunity for Canadian courts to weigh in. Let’s hope 2017 is the year that TAR becomes trendy in Canada too.