Iterative Review is More Efficient

A new study confirms what proponents of analytical ‘non-linear’ review or Iterative Legal Analysis & Sampling (ILAS) have been saying for some time: that it is more accurate and cheaper than traditional ‘linear’ review.


The study was authored by Anne Kershaw, an Adjunct Professor at Columbia University and a practicing e-discovery lawyer. Kershaw had two teams conduct a review of the same set of documents using the same review platform. One team of three contract lawyers followed a traditional ‘eyes on all documents’ approach, while the other team consisted of a single senior lawyer and a technology manager using an ILAS approach.… Read More

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 Ontario’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

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