Litigation trends: responding to the risks and implementing preventative measures. Wednesday, February 1, 2017

Transcription

1 Litigation trends: responding to the risks and implementing preventative measures Wednesday, February 1, 2017

2 Join the conversation Tweet using #NLawMotion and connect Connect with us on LinkedIn linkedin.com/company/nortonrosefulbright 2

3 Speakers Jordan Deering Partner Calgary Jordan Deering represents corporate clients and investors in fraud prevention, investigation and recovery. She draws upon her experience in general commercial litigation and insolvency to develop and implement numerous creative and costeffective solutions to assist clients in fraud recovery. Lara Mason Steve Leitl Senior Partner Calgary Mr. Leitl has conducted proceedings in the courts of Alberta, Ontario, Manitoba and Canada (Federal Court) and appeals in the Ontario Court of Appeal and Alberta Court of Appeal. He has conducted various regulatory proceedings before the Ontario, Alberta and Manitoba securities commissions and the Alberta Utilities Commission. Partner Calgary Lara Mason s practice encompasses a wide range of commercial litigation matters, including commercial disputes, transnational and cross-border disputes, professional liability matters, insurance coverage disputes and class actions. Ms. Mason has appeared at all levels of court in Alberta, before the British Columbia Supreme Court, and before the Alberta Utilities Commission. She has also participated in a variety of alternative dispute resolution processes. 3.

4 Class actions

5 Class actions: An introduction Class action legislation is a body of procedural rules enabling one or more persons to advance an action on behalf of a group of similarly situated persons Class action legislation is procedural it does not create new causes of action Alberta Class Proceedings Act ( CPA ) enacted in 2004 December 2, 2010 CPA amended to become an opt out regime 5

6 Class actions: Unique steps Carriage motions Certification Class notification Approval of settlement or discontinuance Determine the lawyer of record in a class action Courts will consider: nature of the claim, resources and experience of counsel, theories of counsel, state of respective actions, and priority of commencing actions, among other factors 5 requirements: 1. Pleadings disclose a cause of action 2. Identifiable class 3. Appropriate proposed representative 4. Common issues 5. Class action is the preferable procedure Notice of certification must be approved by the court Courts will consider: cost, nature of relief sought, size of individual claims, and number of class members, among other factors CPA, s 35 Courts are primarily concerned with adequate notice Approval is required even if a proceeding has not been certified 6

7 National class actions: US vs Canada US Federal class actions are governed by Rule 23 of the Federal Rules of Civil Procedure No distinction between class members from different states Canada No federal class action regime - class action law is largely provincial Resident class members distinguished from non-resident class members Proliferation of parallel class proceedings against the same defendant Uncertainty surrounding enforcement of class action settlements from other provinces 7

8 National class actions: New developments Meeking v Cash Store Inc., 2013 MBCA 81 Court of Appeal partially enforced an Ontario-based inter-provincial class settlement in Manitoba National settlements Adjourned by SCC Facilitates binding settlement of national class actions Notice will be closely scrutinized Settlement of multiple actions possible under CBA s Class Actions Judicial Protocol 8

9 National class actions: New developments (cont d) Endean v British Columbia and Parsons v Ontario, 2016 SCC 42 Superior court judges can hold hearings outside home provinces Extraterritorial hearings Video link not required Statutory authority and inherent jurisdiction Recent decisions restricted to paper record Endorsement of judges ability to adapt court procedure where necessary to manage multijurisdictional class action litigation 9

10 Class actions: Other developments No statutory right to pre-certification discovery in Canada Limited pre-certification discovery available if relevant to specific certification criteria Precertification discovery Extensive documentary and oral pre-certification discovery in US Canadian plaintiffs may try to use US statutes to obtain broad pre-certification discovery Mancinelli v Royal Bank of Canada, 2017 ONSC 87: plaintiffs cannot circumvent Rules and Canadian jurisprudence on class action procedure Conflicting decision in Quebec so issue somewhat unsettled 10

11 Class actions: Other developments (cont d) Proposed representative plaintiff must establish some basis in fact for each certification requirement More than a superficial analysis of sufficiency of evidence, BUT Continued ambiguity on certification Cannot assess / weigh evidence or determine the merits Warner v Smith & Nephew Inc., 2016 ABCA 223 Majority: not troubled by the lack of expert evidence regarding effects of ions Dissent: neither side had convincing evidence regarding effects of ions, so a class proceeding was not appropriate 11

12 ediscovery

13 ediscovery What is ediscovery? 13

14 Rising costs of ediscovery The rising costs of ediscovery: Why it matters Today s litigators are dealing with significant new factors, including a surge in corporate data volumes, which has led to skyrocketing litigation costs Canadian Bar Association 40-60% of Litigation Budgets involve ediscovery costs Breakdown of ediscovery costs Document Review Processing Collection 14 Source: Rand Corporation, 2012

15 The problem 15

16 Trends to address the problem Scoping Understanding size, complexity and unique concerns Determining staffing, timelines, and pricing upfront Technology- Assisted Review (TAR) Using predictive coding and analytics to prioritize documents for review and cull irrelevant documents Outsourcing Low-cost document review lawyers 16

17 Trend #1: Scoping Unarticulated concerns Sensitive data Jurisdictional issues Supervision Agreements limiting the scope of discovery Budgeting Opaque pricing Revising estimates based on actual reviewer pace Discovery strategy Aligned with client business and litigation objectives Project management 17

18 Trend #2: Technology Assisted Review Introduction to TAR Computer assisted review reference model Set goals Set protocol Educate reviewer Achieve goals Source: Rand Corporation,

19 A story on TAR at Norton Rose Fulbright: Case study Traditional culling methods and search term testing Sampling and search term analysis Potential number of relevant documents reduced from 3.3 million to 1.7 million Potential number of relevant documents reduced from 1.7 million to 375,000 Utilizing Norton Rose Fulbright Accelerate Technology Validation Statistical sampling was performed on the leftbehind universe Ultimately, we reduced the documents being reviewed by 92%, saving our client over $3.4 million Predictive coding Predictive coding using Norton Rose Fulbright Accelerate Technology prioritized documents for review to 213,000 documents Document review completed by our lawyers and contract lawyers at Norton Rose Fulbright 92% $3.4M $3.4M 19

20 Courts accept Technology Assisted Review What the courts say Sedona Canada Principles Addressing Electronic Discovery Palmerston Grain, A Partnership v Royal Bank of Canada, 2014 ONSC 5134 A breach of the Sedona Principles is a breach of the Rules Rio Tinto PLC v Vale SA, 306 FRD 125 at 126 (SD NY Dist Ct 2015)... [T]he case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it. Source: Rand Corporation,

21 Trend #3: Outsourcing Growth of Legal Process Outsourcing (LPO) The LPO market has been valued at $3 billion globally and is growing at an estimated annual rate of over 25% More than 40% of lawyers currently use LPO in their firms or departments 24% of those who use LPO use it for document review or ediscovery Considerations for LPO of document review Review lawyers training, background, etc. Security and jurisdictional hosting Quality control 21

22 Litigation risk mitigation

23 Litigation minimization framework 23

24 Stage #1: Review and discovery Trends Risks Process Controls Compliance Lessons learned Governance Reporting Monitoring 24

25 Stage #2: Preventative measures Contracts Governance Risk management Insurance 25

26 Stage #3: Effective resolution Summary determination Case assessment Impact ADR AFA 26

27 Litigation minimization framework 27

28 2016 Litigation Trends Annual Survey Canada Download the report 28

29 Contact Jordan Deering Partner, Norton Rose Fulbright Steve Leitl Senior Partner, Norton Rose Fulbright Lara Mason Partner, Norton Rose Fulbright

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