Crystal O'Donnell, Chief Executive Officer and Senior Counsel at Heuristica Discovery Counsel, joins George Socha, Senior Vice President of Brand Awareness at Reveal, for the first in a special set of ACEDS #eDiscoveryLeadersLive sessions broadcast from the Reveal stage at Legalweek 2023.
The founder and CEO of Heuristica Discovery Counsel LLP, Crystal has extensive experience as litigation and eDiscovery counsel having practiced with a leading litigation firm and the Crown Law Office - Civil of the Ministry of the Attorney General (Ontario). Crystal is the Chair of the Board of Directors of CanLII and Lexum, the Chair of a Uniform Law Conference of Canada (ULCC) Working Group, an elected Council member of the OBA, and a member of the EDRM Global Advisory Council. Crystal is recognized as a leading eDiscovery counsel in the Who's Who Legal, Canada and Global, and was the recipient of the Ontario Bar Association President's Award in 2020 for contributions to the advancement of justice.
After sharing her background and explaining what her eDiscovery law firm does, Crystal discussed differences between how eDiscovery is handled in Canada and the US.
Key Highlights
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- [0:55] Introducing Crystal and her eDiscovery law firm, Heuristica.
- [2:00] How they answer the question, “What is Heuristica?”
- [3:53] Cross-border issues: One of these things is not like the other.
- [4:35] The implied undertaking rule or the deemed undertaking rule.
- [5:35] Implications of the deemed undertaking rule: less need for redaction.
- [6:26] Implications of the deemed undertaking rule: get court-ordered projection before moving data across borders.
- [6:48] Canada’s modified clawback provisions and how it differs from US provisions.
- [8:58] Canada’s privilege and work products laws and how they differ from US ones.
- [9:25] How the work product differences play out across the Canada-US border.
- [9:51] How people run afoul of these differences: Canadian letters rogatory.
- [10:41] How people run afoul of these differences: pleading the 5th in the US.
- [11:15] How people run afoul of these differences: one deposition versus many, non-party examinations.
- [13:10] The trust factor: Canada versus US.
- [14:00] Cross-border asymmetrical litigation.
- [16:23] Words of wisdom for the US eDiscovery market.
Key Quotes
- “There is a growing recognition that [eDiscovery] is an area of law… It makes it easier to explain how we fit in as eDiscovery counsel.”
- “Although [Canada and the US] are very similar, there’re small differences on some key issues including privilege, the obligation to disclose documents, and in every Canadian jurisdiction we have what’s referred to either as an implied undertaking rule or the deemed undertaking rule.”
- “Other than in Quebec, we have a positive obligation to disclose all relevant documents, good or bad, and whether you ask for them or not…. Because of that obligation to disclose, the deemed undertaking rule states that if I disclose a document in the course of a piece of litigation, that document and the information from that document cannot be used for any other matter or any other purpose without leave of the court.”
- “In Canada, in our jurisdictions, we automatically have a common-law right to get back documents that we’ve inadvertently disclosed… In order for that common-law principle to apply, first of all you need to take immediate steps once you know that it has happened. And you have to establish to the court that it was inadvertent and that you took some steps to protect the privilege.”
- “Your attorney client privilege is very similar to our solicitor-client. Slight differences. Where we differ significantly is your attorney work product and our litigation privilege because in Canada litigation privilege is over once the litigation is over, so those documents are no longer privileged.”
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