Wrestling Common Litigation Issues to the Mat

November 19, 2014

Wrestling Common

Litigation Issues to the Mat

Panelists

Lynn Mahoney

• Assistant General Counsel, Bruce Power

David T. Woodfield

• Partner, Toronto

Laura Van Soelen

• Associate, Toronto

Rick Kathuria

• National Director, Project Management and Legal

Logistics, Toronto

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Outline

1. Complexity in modern litigation

2. Document management for litigation

3. Legal Project Management (LPM)

4. Case Study – Lessons Learned

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Part I: Complexity in Modern Litigation

What do we Mean by Complex Litigation?

Complex (adjective)

1. composed of many interconnected parts; compound; composite: a complex highway system.

2. characterized by a very complicated or involved arrangement of parts, units, etc.

3. so complicated or intricate as to be hard to understand or deal with: a complex problem

Source: dictionary.com

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Complex Litigation Can be Like a Bowl of Spaghetti

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Sources of Complexity in Modern Litigation

Multiple jurisdictions (and

possibly multiple counsel)

Parallel proceedings (e.g.,

regulatory and civil)

Various defendants

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Sources of Complexity in Modern Litigation

High stakes

Thousands, sometimes

millions of documents

Highly technical issues

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Dealing with Complexity

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Dealing with Complexity

• All of the moving parts in the big picture should

be co-ordinated.

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Co-ordination

• Co-ordinate:

Resource use

Schedules

Budgets

Messaging

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Part II: Document Management for Litigation

Once Upon a Time….

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Now: The Age of Electronically Stored Information (“ESI”)

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The ESI Revolution

• Data is rarely stored in banker’s boxes.

• Now it’s stored digitally – and not just on

computers.

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HOST

The ESI Revolution

• Some statistics:

Over 99% of all documents are created or stored

electronically.

60 billion emails are being created and sent each

day around the world.

Enterprise data is doubling every three years.

Source: Lexisnexis: Elements of a Document Retention Policy,

Proliferation of ESI

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The ESI Revolution

• ESI differs from hard copy documents

Volume

Variety of sources

Dynamic quality

Hidden Information

Dependent on the system that created it

Hard to delete

Source: Managing Discovery of Electronic Information

http://www.fjc.gov/public/pdf.nsf/lookup/eldscpkt.pdf/$file/eldscpkt

.pdf

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The Impact of the ESI Revolution

More information is

accessible than ever before.

Information can be altered or

disseminated rapidly.

Storage is a massive issue.

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ESI has Increased Production Volumes

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Meeting the Challenge

You can help your organization

by being:

Ready

Flexible

Proactive

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Be Ready

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Be ready:

develop a

comprehensive

document

retention policy

Document Retention Policies

Explain the organization’s document storage system

Set retention standards

Take steps to protect privilege

Enforce and audit the policy

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Document Retention Policies

• Consider

Special rules that apply in

different proceedings

(e.g., litigation vs.

arbitration)

Legal principles and best

practices

Efficiencies

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Be Flexible

• A document retention policy should be flexible.

Suspend regular destruction of documents that are

relevant to actual or threatened litigation

Litigation hold policies can be developed separately

or as part of the same policy

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Why is this Important?

• There are consequences for

failing to retain documents:

Tort of spoliation

Striking of pleading

Adverse inference

Contempt of Court

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Be Proactive

• Plan for document production early on

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Document Management for Litigation

• Steps in an efficient e-discovery project:

1. Preserve documents

2. Plan

3. Meet and Confer

4. Review

5. Produce

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Preserve Documents

Identify custodians

Identify date de-limiters

Implement a litigation hold

Assess the document pool

Gather potentially relevant documents

Engage IT personnel

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Plan

Early case assessment

Determine appropriate review

platform

Design a review process (e.g.,

manual vs. technology-

assisted review)

Consider retaining an e-

discovery specialist and other

external providers, if

appropriate

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Plan

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Review the

smallest

appropriate

data set

Meet and Confer

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Review

Train review team

Monitor quality of review team’s work

Review team’s output regularly

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Produce

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Production

formats

Timetables

Inadvertent

disclosure

In accordance

with obligations

(e.g., discovery

plan, affidavit of

documents)

Document Management for Litigation

• New development:

1. OBA E-Implementation Committee model

affidavit of documents (Ontario)

More reflective of modern document review

practices

Incorporates proportionality

Appends a discovery plan

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Part III: Project Management

Objectives

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Overview of Legal Project Management1

Review basic LPM principles2

3 A 4-stage LPM Framework

4 Roles and Responsibilities

Overview of (Legal) Project Management

37*Source: PMI / PMBOK

Definitions

Project Management: the application of knowledge, skills, tools,

and techniques to meet the project requirements

Project: A temporary endeavor undertaken to create a unique

product, service or result

What is the difference between “Project Management”

and “Legal Project Management”?

Benefits of Legal Project Management

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value knowledge market differentiator

appropriate workefficiency

get paid for the hours workedpredictable cost

clarity on each matter

enhance trust/relationships/teamwork

client satisfaction

clients participants law firm

Iron Triangle – Triple Constraints

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Every project has three key constraints that must be considered

together

Iron Triangle – Triple Constraints

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The consequences of changes should be thought through proactively

RACI Matrix

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People responsible to complete

the tasks

The one (and only one) person

accountable for the outcome

People who add knowledge

and expertise

People affected by the outcome

– Stakeholders

R

A

C

I

Roles on a Legal Matter (Overall)

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Client Sponsor

Client Team

Client Team

Relationship Lawyer

Lead Lawyer

Matter Team

Legal Project Manager

Law Firm Team

Third Party

Note: A person can play multiple roles a matter.

Gowlings PracticalTM Framework

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A four step-framework

making LPM easy for

us and our clients

Gowlings PracticalTM Framework – Define

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1 Define

Matter goals

Client objectives

Scope of work

Timing

Staffing

Value

Understand client expectations

Key Law Firm Responsibilities

Clearly articulate expectations and a

definition of success

Key Client Responsibilities

R

A

C

I

Lead Lawyer

Relationship Lawyer

Client Sponsor

Matter/Client Team, LPM

Gowlings PracticalTM Framework – Plan

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2 Plan

Agree scope; assumptions

Establish plan; key milestones

Allocate resources

Identify baseline fee estimate

R

A

C

I

LPM

Lead Lawyer

Client Sponsor

Relationship lawyer,

Matter/Client Team

Engagement Letter outlining plan with

scope, fees and assumptions

Key Law Firm Responsibilities

Review, validation and feedback on

scope, fees and assumptions

Key Client Responsibilities

Sample Project Plan Template

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Sample Project Plan Template – Task View

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Assumptions

Links to precedents

Progress

Status

Gowlings PracticalTM Framework – Monitor and Manage

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3 Monitor & Manage

Track progress (dockets)

Identify variations

(scope, schedule, estimates)

Take corrective actions

Identify and track risks

Communicate status

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A

C

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LPM

Lead Lawyer

Client Sponsor, Matter/Client

Team

Client Sponsor, Matter/Client

Team, Relationship Manager

Status reports

Addendums to engagement letter

Key Law Firm Responsibilities

Provide direction on new circumstances

Provide feedback

Key Client Responsibilities

Gowlings PracticalTM Framework – Review and Improve

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3 Review & Improve

Lessons learned

Client satisfaction

R

A

C

I

LPM

Lead Lawyer

Client Sponsor, Matter/Client

Team

Relationship Lawyer

New and updated precedents

Historic matter data for comparison

Key Law Firm Responsibilities

Provide feedback

Historic matter data for comparison

Key Client Responsibilities

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4. Case Study – Lessons Learned

Case Study

• Complex case involving:

One named claimant and defendant, but several

other interested parties

Millions of documents

Dozens of witnesses

Many highly-technical issues

No defined set of procedural rules

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Lesson 1: Be Flexible and Adaptable

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Lesson 2: Regular Monitoring is Important

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DO NOT DO

Lesson 3: Work as a Team

Communicate

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Thank You

montréal ottawa toronto hamilton waterloo region calgary vancouver beijing moscow london

Lynn Mahoney: Bruce Power

David Woodfield: Gowlings

Laura Van Soelen: Gowlings

Rick Kathuria: Gowlings

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