EdiscoveryCanada.com

A perceptive large firm litigation law clerk writes today:

"I was wondering if you could give me some insight into "why lawyers should care" about the draft Ontario Practice Direction.  As you know, there will be a meeting in Ottawa on January 10 and I'm hoping to encourage some lawyers to attend from our office; but am not sure how best to present the importance of the issue."

It's a good question, in part because it highlights the general lack of interest in "technical" matters of document production.

The easy answer to the question is that eventually, the Superior Court of Ontario could decide to follow British Columbia's lead and sign the Practice Direction. As such it will have a direct impact on litigants, because failing to follow the Practice Direction's Protocol for document exchange could have cost consequences. Even if the draft document remains a Judicial Council model and is not officially adopted by the Ontario courts, individual judges would likely refer to it in cases where parties are disputing the cost of document production, such as JDS Uniphase Inc. v. Metconnex Canada Inc., 2006 CanLII 34432 (ON S.C.). In the same way that the Ontario Task Force Guidelines on E-Discovery have worked their way into the Common Law, elements of the model Protocol could become mandatory by way of precedent. For these reasons alone, lawyers are well advised to participate in the drafting of this document.

The more subtle answer is that lawyers are busy people whose time is expensive and therefore valuable. They should not, as  a general rule, have to be drawn in to discussions about whether an export file should be ASCII CSV or tab-delimited. Law clerks, paralegals, vendors and IT litigation support people must be involved at the technical level to ensure the smooth exchange of images and data. But everyone working on a case where production is being done electronically needs direction on  legal and strategic matters, and that direction can only come from one source: counsel.

The Practice Direction Protocol is structured as a default standard. Parties are free to negotiate around the base requirements. For example, should one party provide OCR text to another? Is "estimated date" privileged work product or just another objective field that forms part of an affidavit? Do e-mail attachments that are captured in an e-discovery process have to be coded for the affidavit or is full text sufficient? Should parties be encouraged to share the costs of document scanning? If coding is done by an outsourced vendor, are all the costs recoverable?

The consultative sessions scheduled through January 2007 are tailored to the appropriate audience. This is a great opportunity for thoughtful litigators - especially those who have wrestled with some of these issues - to come forward and present their views.