E-Discovery and Professional Ethics

There is no doubt that electronic evidence has had an increasing impact on legal services, and the knowledge required to effectively deal with evolving technology.

 

In Ontario, this also has an impact on a lawyer’s duty to clients to perform legal services to the standard of a competent lawyer. In Ontario, under the Law Society of Upper Canada’s Rules of Professional Conduct, ‘standard of a competent lawyer’[1] entails, among other things, recognizing limitations in one’s ability to handle a matter or some aspect of it, and adapting to changing professional requirements, standards, techniques, and practices.

 

Although the Rules of Professional Conduct do not explicitly mention electronic discovery, counsel should nonetheless ensure that their client receives adequate legal advice about electronic discovery.… Read More

Estates in the Digital Age: Debunking E-Discovery Myths in Estate Litigation

All aspects of life are increasingly affected by the proliferation of advances in technology. Wills and estates are no exception.

 

One of the results of the growth of digital assets and online communications is the evolution of evidence that is required for estate litigation and estate administration. Virtually all evidence, unless it is a handwritten note, physical evidence or witness testimony, is now electronic in its original format.

 

Heuristica’s Crystal O’Donnell (along with co-author Holly LeValliant) have just published the first of a series of articles on the Trusts and Estates Law section of the Ontario Bar Association website.… Read More

Collaborative Discovery Required

In Thompson v Arcadia Labs Inc, the plaintiffs brought a motion for relief requesting, among other things, several orders related to discovery. The plaintiffs are consultants that provided services to the defendant cybersecurity firm.

 

The parties did not agree on a protocol for exchanging documents, which resulted in unilateral attempts to satisfy production obligations. Master MacLeod, as he then was, (Master MacLeod was recently appointed a judge of the Ontario Superior Court of Justice) found that parties cannot take a unilateral approach to production and that cooperation is critical for defensibility and proportionality.

 

During the course of their business relationship, the plaintiffs created documents for the defendants, which were uploaded to a website.… Read More

Heuristica Celebrates First Anniversary with Expanded Team

Heuristica Discovery Counsel is celebrating its first anniversary and thanks to an extremely successful first year is pleased to announce the addition of two key positions at the firm.

 

With the addition of several major new clients Heuristica recently has recruited Alan Dingle and Keith Bedford.

 

Alan and Keith bring relevant expertise and experience to meet the increasingly sophisticated needs of the market and our clients.  The two new positions enable Heuristica to continue its expansion and ensure that it continues to exceed client expectations.

 

Alan Dingle joins Heuristica as Vice President of Marketing and Business Development.  … Read More

English High Court Endorses Predictive Coding

In two recent decisions, the English High Court has approved the use of predictive coding in the discovery process.

 

The English Cases: Pyrrho & BCA Trading

In Pyrrho Investments Ltd v MWB Property Ltd., released in February 2016, both parties agreed to its use. On May 17, 2016, in an unreported decision[1], the High Court granted BCA Trading, a defendant, an order permitting them to use predictive coding despite the plaintiff’s objection. Counsel for BCA Trading argued that a manual review would be disproportionate in cost, and that predictive coding would be more accurate.

 

These decisions follows similar decisions in the US in 2012 (Da Silva Moore v Publicis Groupe) and Ireland in 2015 (Irish Bank Resolution Corporation Ltd & ors v Quinn & ors).… Read More