Failure to Preserve Results in Costly Review of Backup Tapes

“This litigation has been exceptional in its breadth, venom and expenses.” ­? Justice Turnbull   In Verge Insurance Brokers v. Richard Sherk et al., 2016 ONSC 4007, the defendants brought a motion seeking an order compelling the plaintiff to produce and review 66 backup tapes. The plaintiff objected on the grounds of proportionality and provided evidence that the exercise would cost an estimated $300,000.   Justice Turnbull ordered the plaintiff to restore and review the 66 backup tapes, despite the estimated cost of at least $300,000. Turnbull J., recognizing the exceptional cost, also made the point that had the plaintiff

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

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

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

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