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CCCA_V6No3_Col-McCarthys-FIN_CCCA_V6No2_Col-McCarthys 9/19/12 11:05 AM Page 53 The case for improved Legal Update – McCarthy Tétrault LLP technology in court By Eli Mogil itigation can be expensive. No doubt similar filing systems are well-established in provided with improved access to the Lyour organization has incurred signifi- Ontario — think Teranet for land registry court.This in turn would encourage all cant costs to comply with e-discovery and or the successes of ServiceOntario.There is parties to modernize and use these best proposals for an“e-trial”. Each year it seems no reason for the Ontario courts not to practices. Simply, making a judge’s life that these costs grow and there is little you, have similar systems in place. easier can only be helpful to your case. the paying client, can do. Thankfully, the bench and the private How Does Electronic Filing Help You? Start a “consumer revolt” bar are recognizing the costs can appear The ability to E-file documents in court It is important to remember that the infra- prohibitive, and are trying to improve the offers significant benefits to in-house counsel: structure of our courts is overseen by the processes associated with locating, review- • Eliminating paper briefs saves on the Attorney-General’s Office. With general ing, using and filing electronic data. This costs of copying, binding and hiring cost-cutting in government and poor take- article is the first part of a two-part series courier services,leading to a lower dis- up by the Commercial Bar on previous on these positive developments. bursement line-item on your bills. For technology upgrades (e.g., in the Court At recent bench-bar seminars (one, an complex multi-party litigation — Canada pilot project in 2009–2010,none of Ontario Commercial List Users Committee which is frequent in the Commercial the 50 eligible cases e-filed),the AG’s office CLE session, and the other, an e-discovery List — the costs savings can be signifi- is understandably hesitant to spend scarce seminar at McCarthy Tétrault LLP) cant. For example, a single two-vol- resources without the comfort of knowing Commercial List judges and e-discovery ume brief of approximately 500 pages that the bar and litigants will use it. It is experts provided some interesting insights typically costs $125 in copying and important for you to ensure that your and discussed the challenges that face cor- binding, plus $50 in courier costs. For external counsel take up the Pilot Project, porate counsel. large records and multiple parties, the and to push your counsel to make use of One challenge is that the Ontario bar and savings can be in the thousands. technology — not just in discovery,but also clients are dealing with a court system that • Using electronic evidence in hearings throughout the litigation process, including is decades delayed technologically. Despite gains faster results from the Courts. in the courtroom.Together,we need to arm earlier attempts to automate, the bar and First, there is no time wasted flipping the front line of the judicial system to be clients did not take up the opportunity with from brief to brief,or marking copies of able to persuade the AG’s office that it is sufficient vigour and the programs with- exhibits,or obtaining important materi- time to modernize the Court system — ered.To revive the push for automation,the als that were left behind in the office or from filing to booking hearings to con- Commercial List judges developed the at home. For example, in a recent case ducting trials.As one judge put it, we need Parallel E-Filing Pilot Project for the fall of that lasted one year, Justice Granger a“consumer revolt”rather than the“bewil- 2012. This project encourages parties to noted that 2.5 weeks of that year were dering acceptance by clients” of the anti- electronically file materials with the court, wasted marking paper copies of elec- quated status quo. ranging from factums (which are usually tronic exhibits.Second,providing a case You are the consumer.Together with your under 25 pages) to briefs of law and large to the judge on a memory stick instead external counsel, we should all advocate for motion/application records (which are of giving him or her boxes to carry improved technology. It will save you time often over 1,000 pages), on memory sticks. results in decisions being made more and money in the long term and let you stay While submitting memory sticks is not nec- quickly, especially on urgent applica- within (or even below) budget. essarily a cutting-edge technology solution, tions.We have all felt that reluctance or it is hoped that if it is widely used, a web- inability to bring boxes home for Eli Mogil is an associate in McCarthyTétrault’s based filing infrastructure will be established review during the evening,weekend or Litigation Group inToronto.He maintains a gen- and paper service will eventually be ren- “vacation”. Judges are no different. eral litigation practice, with emphasis on complex dered a thing of the past.A web-based court There was suggestion by the judges that commercial and professional liability issues. filing system is running in Alberta, and if the parties e-serve, they should be (emogil@mccarthy.ca) AUTOMNE 2012 CCCA Canadian Corporate Counsel Association 53