EDRM Participant Profile: Crystal O’Donnell of Heuristica Discovery Counsel

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To enable litigation support and electronic discovery professionals to better understand the benefits of participating in EDRM and the resources that it provides, EDRM, in co-operation with its education partner, eDiscovery Daily, has begun to profile some of its participant members. These profiles are designed to illustrate how participants and their organizations contribute to the success of EDRM as well as how those organizations use EDRM resources in their own businesses. If you are a participant of EDRM and would like to be profiled (or would like to recommend a current EDRM participant to be profiled), please contact George Socha (george@edrm.net) or Tom Gelbmann (tom@edrm.net) to arrange a profile interview with Doug Austin, Editor of eDiscovery Daily.

Today’s EDRM Participant Profile Interview is with Crystal O’Donnell. Crystal is Founder and President of Heuristica Discovery Counsel, headquartered in Toronto, Canada. She has a diverse and relevant professional history, with extensive experience as litigation and e-discovery counsel having practiced with a leading litigation firm and the Ministry of the Attorney General (Ontario). Crystal has represented clients in a number of complex matters at all levels of the Ontario courts as well as in regulatory proceedings and investigations.

Crystal’s range of expertise includes legal, strategic and software aspects of e-discovery, which are critical components of all legal proceedings and evidence-based proceedings. She also has experience with cross-border and conflicts of laws issues which arise in multi-jurisdiction and multi-forum matters. Her years of experience as litigation counsel give her a keen appreciation and understanding of clients’ needs and allows her to deliver defensible, proportionate and cost-effective legal advice and solutions.

Crystal is also currently the Vice-Chair of the Ontario E-Discovery Implementation Committee, (“EIC”); Chair of the EIC Precedents Subcommittee; and, a Steering Committee member of Working Group 7, of the Sedona Conference (Sedona Canada). She is also teaches an eDiscovery course at the Institute of Law Clerks of Ontario.

About Heuristica

Heuristica provides legal advice and services in various phases of discovery to parties involved in litigation, regulatory proceedings and investigations. Its experienced counsel also provide legal analysis of the evidence and opinions on the defensibility and proportionality of the discovery process.

Heuristica is focused on serving the needs of law firms and in-house counsel to conduct efficient and defensible discovery, evidence management and presentation. Its tailored services include discovery planning and legal project management, legally defensible and proportionate evidence review, evidence summaries, and litigation case management presentation.

Tell me about Heuristica.

Having incorporated in May 2015, we are the second law firm in Canada to be focused on electronic discovery and digital evidence. In addition to being solely eDiscovery counsel, the biggest differential that we have is our unique and innovative way of conducting electronic discovery reviews. As opposed to a traditional model where you’re outsourcing to large teams that perform a document by document review, all of our counsel have received advanced training in the technology that is used by our clients. Currently, we have clients using both Relativity and Ringtail and we do everything from running the analytics to searching for the relevant records, and then we review and code them at the same time. We eliminate the need to have multiple layers of review, thereby substantially reducing review costs.

Because our team also includes experienced litigators, we also provide detailed written substantive analysis of the evidence and provide those reports to counsel. So, we ensure that the knowledge obtained in reviewing the documents is actually transferred to the litigation team, enabling us to provide much more valuable work product.

Why did Heuristica decide to join EDRM?

I’ve always felt that EDRM provides excellent practical resources and the additional materials that are provided to members are incredibly valuable. Having just recently joined, I’m looking forward to contributing as a thought leader.

Can you tell me about your use of the EDRM reference model?

Absolutely. The actual EDRM reference model is referenced often here in Canada and I have used it in all of the eDiscovery courses that I have taught over the past few years as the framework to build upon.

Can you tell me about some of the EDRM projects in which you are particularly interested in participating as a new member?

I haven’t started participating in any projects yet, though I do understand that EDRM is considering creation of a Canadian chapter and I would very much like to support that initiative.

How will your experience in The Sedona Conference impact your expectations for your involvement with EDRM?

I’m on the steering committee of Working Group 7, which is what we refer to as “Sedona Canada”. I’m one of the contributing authors and editors to the most recent and updated commentary of the Sedona Canada Principles Addressing Electronic Discovery and I’m also the Vice-Chair of the Ontario E-Discovery Implementation Committee where we provide model precedents for the Ontario bar in relation to electronic discovery. I think that both of those experiences will allow me to contribute substantially to EDRM. I have experience in both policy formulation and creating practical resources and I’m hoping to contribute to more of the practical hands-on resources that can assist others. EDRM already provides very useful information and I encourage my students to join and use EDRM as a valuable resource.

On December 1st of last year, EDRM conducted an “eDiscovery Day”, which also happened to coincide with changes to the Federal Rules being applied here in the US. How do Canada’s rules for procedure differ from those in the US with regard to handling of electronically stored information?

While we have similar legal systems, there are differences, particularly with respect to discovery issues. For example, proportionality is not a new concept in any way to our legal system, and has been a specific part of our discovery rules since 2010. We also have, in most of the provinces in Canada, a positive obligation to disclose relevant documents. It is not based on a request model – if it’s deemed to be relevant to the pleadings, you have to produce it, good or bad.

One of the other significant differences from the US when it comes to eDiscovery is the application of different privileges – we have solicitor-client privilege and litigation privilege. We don’t have what’s called an attorney work product privilege, and our two privileges are a bit different. One important difference is the waiver of privilege, and our common law test to determine whether privilege has been waived is very different from the US. We also have cost consequences – the standard rule is that the losing party will pay costs to the winning party. Costs are awarded on motions and in the action, so it’s one of the driving forces for proportionality – knowing that you may have to pay to the opposing parties’ discovery costs if you’re unsuccessful. It’s a standard rule here and it’s a rare circumstance that you would not have to pay at least a portion of the other side’s costs.

One other difference that relates to our approach is that, at least in Ontario, the client swears the affidavit of documents, not the counsel. So, if the client does not disclose all of the documents, that has fewer implications for counsel than it would in the US. Unless the counsel themselves failed to advise the client of their obligations, or intentionally or negligently did something to prevent full disclosure, there is no professional risk for counsel.

Is there anything else you would like for our readers to know about Heuristica’s participation in EDRM and your goals for the coming year?

We want to contribute to ongoing improvements in how discovery reviews are conducted so that lawyers can better use the technology, because I feel that is the driving force for reducing costs. I find the traditional review models of going through first, second and third level review incredibly inefficient and expensive. With smaller teams of counsel who are trained to use the software, analytics and trained in litigation, you can achieve much more efficient and proportionate reviews.

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