Canada: Records Management @ Gowlings - March 20, 2012 - Volume 3, Number 3

Legal Technology

CASE LAW

Harris v. Leikin Group Inc., [2011] O.J. No. 4161 (S.C.J.)

This decision was one concerning costs following a successful summary judgment motion by the Defendant, First Capital Realty Ltd. ("First Capital"), which was heard together with the unsuccessful motions of four other Defendants.  First Capital sought its costs on a substantial indemnity basis in the amount of $437,000.51, inclusive of $333,159.00 in counsel fees and $62,174.71 in disbursements.

The Plaintiffs challenged First Capital's submissions on costs based on the following arguments:

  1. First Capital is not entitled to entitled to its costs for participating in the four other unsuccessful summary judgment motions;
  2. The hourly rates claimed are excessive;
  3. The time spent was excessive; and<
  4. The amounts claimed violate the principle of proportionality.

The court largely rejected the Plaintiffs' submissions and ordered costs in the amount of $384,465.78.  Disbursements were addressed separately and are discussed below.

Regarding the ability to claim costs for participating in adjoining summary judgment motions, the court noted that the breadth of the claims against First Capital required it to concern itself with the evidentiary record and therefore it had to participate to understand the allegations against it.  The court did however, note that the costs associated with some counsel attendance was slightly excessive as concerning attendance at the examinations of those parties to which counsel appeared on an observing basis only in order to maintain a "watching brief."

Regarding the hourly rates charged, the court stated that the appropriateness of the rates claimed should be determined by reference to the overarching principles of fairness and reasonableness.  Those principles recognize that the parties in this action retained downtown Toronto counsel from large firms and could have reasonably expected significant legal costs.  Reasonable rates therefore were assessed based on average rates of comparable firms.

Regarding the time spent on matters, the court found no merit to the Plaintiffs' submissions and noted that the division of work by counsel for First Capital was appropriate given the expertise of the respective lawyers.

Regarding proportionality, the court noted that the a plaintiff must reasonably expect that the greater the number of defendants it involves in the litigation, the greater the resulting costs incurred will be.  Further, the way the Plaintiffs pleaded their case required significant involvement by all Defendants in the action. The court cautioned future prospective plaintiffs on this basis.

On the issue of the claim for disbursements, the court focused on the $30,373.36 claimed in "electronic document production and database management" and concluded that disbursements made for electronic document management should now be regarded as a standard "disbursement reasonably necessary for the conduct of the proceeding" and should be recoverable as a matter of course when receiving an award for costs. 

The court supported its decision on the costs for electronic document management based firstly on the acknowledgement that the overwhelming majority of documents are created, stored and retrieved electronically and effective conduct of litigation involving a large number of documents requires electronic document management. 

The court regarded the references to The Sedona Canada Principles Addressing Electronic Discovery in the Rules of Civil Procedure and Best Practices regarding motions as indicating the expectations, obligations, requirements and procedures contained within those principles that are now part of the Rules of Civil Procedure.  The court went on to state that parties are expected to comply with The Sedona Canada Principles Addressing Electronic Discovery requirements and the failure to do so is non-compliance with the Rules.

The court also specifically endorsed the principles and approaches in Principle 12 of The Sedona Canada Principles Addressing Electronic Discovery and Principle 13 of the Guidelines For the Discovery of Electronic Documents in Ontario as recognizing the ability of parties to limit appropriate discovery obligations through negotiation.  Further, the scope and recoverability of costs for electronic document management should be discussed in a mandatory Discovery Plan. 

In closing remarks, Brown J. observed the irony concerning the efforts made concerning the  development of rules and principles for electronic document management, while the courts themselves are not yet prepared to accept documents in electronic format.  Brown J. referred to this issue as a "most dangerous disconnect" and noted that the court must take steps to fix the problem by taking steps to introduce practices such as e-filing in order to avoid the risk of creating a serious gap between the public and their courts, thereby endangering the legitimacy of our court system.

Monique Da Silva Moore, et al. v. Publicis Groupe & MSL Group 11 Civ. 1279 (ALC)(AJP) . Southern District of New York.

Action by the female plaintiffs against the defendants alleging gender discrimination, pregnancy discrimination and violations under the Family and Medical Leave Act, Equal Pay Act and Fair Labor Standards Act.  At issue in the proceeding was the use of predictive coding to cull the millions of documents available in the discovery process.  Neither party was opposed to the use of predictive coding, but the plaintiffs took issue with MSL's proposals for how to implement the predictive coding.  MSL had suggested reviewing and producing the top 40,000 documents.  Ultimately, this suggestion was rejected as being too simplistic and that what would be produced would depend on what the statistics showed for the results. 

Accordingly, the Court sought to further clarify the protocol for implementing the predictive coding.  The first issue was which custodians' emails would be searched.  The parties agreed to an initial thirty custodians in a first phase.  The plaintiffs sought to include a number of comparator custodians as well.  The Court held that the first phase would be limited to the thirty custodians and that other custodians could be added in a second phase once a first phase had been completed.  The Court also considered the sources of electronically stored information (ESI).  The parties agreed to several ESI sources but certain HR shared folders were left to a phase 2 since neither party could provide information as to the likely contents.  Next, the Court determined the predictive coding protocol.  The parties agreed to use a 95% confidence level to create a random sample of the email collection which sample would be reviewed to determine relevant documents for a "seed set" to use to train the predictive coding software.  All documents reviewed as a function of the seed set, whether coded relevant or not, would be produced to the plaintiffs.  The plaintiffs had some concerns about the rounds of iterative reviews to ensure that the computer was returning all relevant documents.  However, the Court held that the process was not perfect but that it was better than the alternatives without nearly as much cost.  If the seventh iterative review round revealed that the system was not working than the Court could review the protocol. 

The plaintiffs objected to the predictive coding approach on the basis that MSL counsel had a duty to certify that the document production was complete and correct as at the time it was made.  The Court held that this objection was based on a misunderstanding of the law and that certification was not required and that a principle of proportionality applied.  Finally, the Court held that in order to determine proportionality it was necessary to have more information than the parties currently had.  Accordingly, the plaintiffs' concerns that the process was not reliable were immature and reliability could only be reviewed down the road once more information was available.

The Court commented that computer-assisted review technology exists and should be used where appropriate.  It is up to the Court to supervise the process used and the interaction between man and machine.  Computer-assisted review appears better than other alternatives and should be used in appropriate cases.  The procedure is not perfect, but the rules do not require perfection.  The transparency of a search protocol will make it easier to approve.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions