Canada: A Close-knit Ediscovery Community, Continuously Embracing New Technology

In 2017, KrolLDiscovery will be diving deep into ediscovery practices around the world. Tour with us as we explore data collection, privacy, proportionality and production practices in the Americas, EMEA and APAC.

A couple weeks ago, we travelled to the Land Down Under to learn about predictive coding practices in Australia. Our next stop: Canada, where we find that Canada is leading the way on cooperative ediscovery.

What role does ediscovery technology play in Canadian litigation matters?

Ediscovery practices in Canada closely align to analogous processes, principles and goals in the United States and the United Kingdom. For example, Canadian parties and their counsel are seeking to collect, process, review and produce electronic documents as quickly and efficiently as possible. To achieve that goal, many law firms have implemented in-house ediscovery technologies to be able to support their clients’ litigation needs. Some firms and corporations, on the other hand, also take advantage of the close-knit ediscovery community in Canada and choose to work with an ediscovery provider in a managed services capacity. Akin to the United States, many law firms are continuously re-evaluating current technologies and looking for new solutions as the cloud opens new avenues for conducting ediscovery faster and possibly cheaper without sacrificing security.

What is unique about ediscovery in Canada?

In Canada there is not a large body of ediscovery case law like in the United States or even the United Kingdom. In fact, a prominent judicial opinion referencing predictive coding or Technology Assisted Review has yet to be handed down. Instead, legal teams rely on practices and guidelines such as those found in The Sedona Canada Principles or Ontario Rules of Civil Procedure 29.1.03. Furthermore, the Ontario Ediscovery Implementation Committee (EIC) released a series of model documents to help guide litigants through the ediscovery process, including a Discovery Agreement, Preservation Agreement, Checklist for Preparing a Discovery Plan and a Proportionality Chart.

Specifically, when talking with Canadian ediscovery gurus, there is a general sense that Canada leads the global ediscovery community in terms of cooperation and proportionality, with many practitioners stating that developing ediscovery parameters with opposing counsel or regulators is simply more collaborative when compared to ediscovery matters in other jurisdictions.

What are some obstacles to ediscovery in Canada?

In some aspects of legal technology, the Canadian legal system is still playing catch-up, especially when it comes to the technically complex areas of ediscovery, trial presentation or technology in the courtroom. For example, there are factions of early-adopters embracing predictive coding in document review. However, despite the well-established benefits, the majority of legal teams are reluctant to leverage artificial intelligence to categorize documents.

Over the next few years, document review workflows will modernize as additional Canadian legal teams become more experienced with new technology such as predictive coding. This will be increasingly important in the antitrust practice area, where regulators are starting to adopt broader policies similar to U.S. antitrust protocols. The need for predictive coding will increase if parties in antitrust matters need to sift through additional volumes of documents.

How often do Canadian legal teams transfer data to the United States or Europe for ediscovery?

Canadian legal teams are continuously evaluating the needs of the specific matter and comparing risks and benefits of conducting ediscovery in Canada versus elsewhere. Many corporations in Canada have U.S. offices; so often, Canadian litigation has a U.S.-based component and ediscovery documents easily cross borders. However, sometimes legal teams are reluctant to transfer data to the United States for ediscovery processing, hosting and review because of the potential impact on other pending cases or the importance of privacy in the matter. Legal teams in Canada understand that ediscovery is available in the global marketplace and should the availability of technology, ability to deliver under tight time frames or need for a large pool of document reviewers demand resources outside of Canada, parties will consider transferring subsets of data to the United States or Europe.

How does language impact ediscovery in Canada?

Many cases contain documents in both English and French; accordingly, legal teams often require document review teams comprised of bilingual Canadian lawyers fluent in English and French. This sometimes drives up the costs associated with review, placing more importance on advanced search and analytics technologies that increase document review speeds and effectiveness.