The June 2010 issues of Canadian Lawyer and its sister-publication In-House each has an article about e-discovery. The Canadian Lawyer’s article by Gerry Blackwell, is the second and last part of the “e-Discovery – Are you in or out?” series about the question facing Canadian law firms as to whether insource or outsource e-discovery processes (the current issue is not online yet). The article is based on a quick case study of Bell Canada’s insourcing of all phases of the E-Discovery Reference Model (EDRM). Bell may decide whether to perform all these phases internally or outsource the later parts, depending on many business factors. The whole system, software and hardware, paid for itself in a year and is back by a multidisciplinary team of legal, IT and Information Security. Dominic Jaar, quoted in the article, stresses that the first step – information management – is a “crucial pre-requisite for economical e-discovery” that can only be taken internally. He noted that the cost argument is pretty straightforward: “There are huge costs involved in piling up data, even though we’re told storage is cheap and getting cheaper. Yes, the hardware is cheap, but the indirect costs are high”. Indeed, data management isn’t free, neither e-discovery data processing, nor losing a lawsuit because a silver bullet was found in documents one didn’t need to preserve… The In House article The e-discovery shift is based on a first e-discovery roundtable featuring Justice Colin L. Campbell, of the Ontario Superior Court of Justice,  Alan D’Silva of Stikeman Elliott, Kelly Friedman of Ogilvy Renault and chairwoman of Sedona Canada, Laurie MacFarlane of CIBC Legal Department and Melanie Schweizer of Bell Canada. Many topics were discussed: proportionality, personal information, cross-border issues, and document-retention policies, among others. Reading as a transcript of an open discussion between experts putting ideas to debate, some excerpts are great food for thought. Two of them come to mind. On the importance of a data-retention policy, Melanie Scheizer underlines that companies should be able to :

“[show that steps have been taken] to audit the policy and measure compliance. It’s not just a piece of paper that nobody has read. Document retention is becoming more important because of the links between that policy and the cost containment issues on e-discovery. So when you can make a business case how it is going to save the company money to have a very efficient document retention policy, there may be some more resources thrown at that issue than in the past where it was a nice thing to do but what is the benefit in doing that.”

On the cultural shift need to migrate from crisis mode to planning mode, Justice Cambell shares his thoughts on how discovery law in Canada must develop differently than in the United States :

“I think the one thing that Canadian lawyers are attuned to is our obligation to reduce relevant documents, whereas in the U.S., their rule is you only produce what you are asked for. And I think that is what drives a lot of their confrontation… So the big knock on what we’re all doing is, are we destroying civil litigation? We have invented industries to take care of the growing amount of information that is available. It does have to be controlled and tamed, and I think I go back where Melanie started, with the meet and confer, changing the culture right at the beginning, so people don’t feel that it is so adversarial. […] Big task, but hopefully we’ll get there.”