Departments

It’s tough to kick someone out of their castle

  • Real Estate
Written by Posted Date: November 12th, 2012
Image: Dushan Milic
Image: Dushan Milic
What do you have to do to get yourself thrown out of a condominium? What if you are caught on a video surveillance camera pulling a neighbour’s hair, breaking her glasses, and punching her in the face? And what if you are also accused of assaulting two other neighbours — including an 80-year-old woman — and you leave a voicemail message saying, “you fucking bitch, I’ll get you” for one of the witnesses?

A lifelong passion for the law

  • Cross Examined
Written by Posted Date: November 12th, 2012
Photo: Grant Romancia
Photo: Grant Romancia
As a young boy growing up in Unity, Sask., Tom Gauley knew exactly what direction he wanted his life to take: “I only had one thought in my mind — that I wanted to be a lawyer.” Eight decades later, with a long list of accolades and achievements to his name, including the Order of Canada, he still goes to the office every day. He has no plans to step down from the helm of McDougall Gauley anytime soon. “Not as long as I have my health — health is everything and I’m thankful for it. When you consider I couldn’t pass the medical when I tried to enlist in the army. In retrospect, thank goodness, I probably wouldn’t be here.”

Litigation support software conundrum

  • Law Office Management
Written by Posted Date: October 1st, 2012
Illustration:Jeremy Bruneel
Illustration:Jeremy Bruneel
In most circumstances, a legacy is a very nice thing to have. But not in the world of information technology, where owning legacy software or hardware is rather like inheriting your grandfather’s 1990 Oldsmobile — it still runs and gets you where you are going, providing you don’t want to go too far or too fast, so you are reluctant to get rid of it, but it costs a fortune to maintain and occupies space in your garage that might otherwise house a brand new SUV with back-up cameras, parking assistance, and myriad other technological enhancements.

Law firms need document retention policies too

  • Tech Support
Written by Posted Date: October 1st, 2012
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_2012_October_jason_leung.jpgThis article will discuss document retention and destruction practices that Canadian law firms are using today. If your law firm doesn’t already have a document retention and destruction policy for both paper and electronic files, it should implement one as soon as possible.

The problem is enforcement

  • Legal Report: ADR
Written by Posted Date: September 3rd, 2012
Illustration: Oleg Portnoy
Illustration: Oleg Portnoy
In an attempt to further establish its reputation as a leading international arbitration body, the China International Economic and Trade Arbitration Commission revised its rules on May 1, 2012 to be more in line with respected organizations like the International Chamber of Commerce. With Canadian imports and exports to China rising every year ($44.5 billion and $13.2 billion respectively in 2010), will these new rules do anything to solve the problem foreign companies have in enforcing their arbitration awards in China? The short answer is not really.

Why should I consider production in 'native' format?

  • Tech Support
Written by Posted Date: September 3rd, 2012
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_dera-nevin.jpgIncreasingly, lawyers are “going native” for production. The trend appears to be in its early stages, but all indications are that the use of native productions is expanding. Examples of this phenomenon include lawyers asking their opponents for Microsoft Excel and PowerPoint documents, or agreeing to turn over video and voicemail messages rather than producing a transcript of those items. It’s possible that soon only documents requiring redaction will be exempt from requests for native production.

Investing in the future

  • Law Office Management
Written by Posted Date: August 6th, 2012
Illustration: Jeff Szuc
Illustration: Jeff Szuc
Celia Fergusson is hitting the ground running as she embarks on her first year as an associate at Fillmore Riley LLP. Her year as an articling student at the Winnipeg law firm has not only given her the exposure to all areas of legal practice as prescribed in law society requirements, it has also helped her establish good working relationships with partners and associates in her chosen field of litigation in employment and insurance law. “They understand my skills. They understand the level I’m at,” she says.

What's the holdup?

  • Legal Report: Family Law
Written by Posted Date: August 6th, 2012
Illustration: Jeremy Bruneel
Illustration: Jeremy Bruneel
When Justice David Steinberg was first named to the bench in 1969, couples breaking up in Ontario faced a labyrinthian maze of courts and jurisdictions. There was the Provincial Court and the District Court, the Superior Court and the Surrogate Court — all with jurisdiction over some part of family law. Proceedings could be started in one court, only to end up in another. Some of the law even dated back to British 19th-century ecclesiastical courts. “It was somewhat frustrating,” he recalled. “More for the clients than for the judge.”

Do strong IP laws stifle innovation?

  • Legal Report: Intellectual Property
Written by Posted Date: July 3rd, 2012
If the relationship between intellectual property laws and innovation had been on the agenda 10 years ago, there would have been a unified call for stronger IP laws. In current reviews of the dynamic between the two, it is evident that many stakeholders have experienced a mind-shift brought about by a recognition that the “more is better” approach to IP rights can be more stifling than productive.
These changing perceptions are among the views that the government’s standing committee on industry, science, and technology (INDUS) is hearing as it undertakes a study on intellectual property focusing on its role promoting innovation and leading-edge technology.
Professor Ariel Katz, director of the Centre for Innovation Law and Policy at the University of Toronto, has been aware of a growing skepticism for some time. “The basic theory of why IP rights are important for innovation is well-understood and straightforward. Research and development are costly, and once something is created it can be easily reproduced. Everyone can use it without sharing the cost and risk of creating it. Therefore, if people can’t get a return on their investment, they won’t invest. On the other hand, rights that prevent use by the next generation of innovators lead to sub-optimal dissemination of information and monopolies which cause problems of their own.”
For those trying to determine when IP law morphs from being productive to counterproductive, it’s difficult to find a clear answer. To find the line, Katz says that people need to ask how broad and how long protective rights should be, and what it is that they are actually protecting. “That’s a series of questions with no easy answer. At some point there is an inverse relationship between the level of protection and the amount of innovation.”
Many think Canada has already reached that turning point, as evidenced by the multitude of opinions on recent reform efforts, particularly on copyright. “A lot of the current reform is driven by the kind of thinking that stronger is better,” notes Katz, “but it is too crude and sometimes just wrong. Reforms only go in one direction — ratcheting up. Places with more relaxed systems sometimes do better.”
Professor Jeremy de Beer of the University of Ottawa’s Faculty of Law told the committee that it should focus on “better IP, not more IP rights.” He advocates a recognition that not everyone wants to handle IP the same way. He endorses a more creative use of IP rights known as “open innovation,” where you use IP rights to facilitate collaboration rather than as a tool of exclusion.
Katz has seen this in the copyright arena, particularly with respect to open-source software. “If you write some code, you allow everyone by licence to change it for free. The only condition is that what they produce is subject to the same terms. This is a defensive use of copyright to ensure the openness of the system. This is also being used in the patent arena by research organizations. It’s a reverse way of using intellectual property rights.”
Apart from the opinion evidence it is gathering, the committee also has access to a wealth of reports and precedents. The international community has been grappling with the same issue and many countries have gone through a modernization of their IP systems in recent years. Canada is subject to the World Trade Organization’s TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement and can access the World Intellectual Property Organization’s increasing resource of templates and treaties for guidance.
However, it is important that the goal of global harmonization does not obscure the search for a custom-made Canadian solution. “If we simply copy what other countries are doing, we may be repeating the same mistakes, and we won’t know if we have nothing to compare it to. When there are differences that don’t serve any purpose and just increase costs, they can be removed, but otherwise there is a lot of value in competition and experimentation,” says Katz.
At home, there have been five major reports in the last five years addressing changes required to boost innovation. Many cover aspects other than IP, but most at least touch on it. Only five years ago, INDUS undertook an extensive study of IP in Canada and produced a widely endorsed report declaring the need for urgent action. However, of its 19 recommendations, only two or three have been acted on.
While some stakeholders have called for more studies, it is evident most are impatient with the lack of action. Graham Henderson, president of the Canadian Recording Industry Association, describes the issue as having been “studied to death” and says his presence before the committee had a “disconcerting sense of déjà vu.” Adam Herstein, a partner of Pitblado Law in Winnipeg, thinks the government should stop writing reports on innovation and “get out of the way.” He prefers a hands-off approach, leaving the commercial markets to find their own way. “Governments don’t innovate — inventors innovate, creators innovate. I’ve seen a lot of good projects die because of government.”
What lawyers are saying is Canada already has a strong IP framework, and all that is required are statute- and system-specific improvements. The process bringing the Copyright Act into the digital age, and the regulatory review into the Trademarks Act are all seen as extremely valuable reforms. “C-11 has gone a long way towards fixing things,” says Mark Eisen, the president of the Intellectual Property Institute of Canada. “We are hopeful that countries that feel Canada is lagging behind in this area will be satisfied.”
Philip Lapin, a partner of Smart & Biggar in Ottawa, says most trademark reforms deal with procedures, one major substantive change is that trademarking of soundmarks is now allowed. “As in other parts of the world, the Canadian office will now register holograms, motion marks, and sounds.” He also applauds the recent improvement of efficiency at the Trademark Office. “It used to take 18 months to two years, now it’s six months or less.”
The consensus seems to be that patent law and the industrial design regime need this same attention. Witnesses at the committee from the university sector indicated with the high cost of drafting and prosecuting patent applications, as well as the long time to issuance, few patents can be supported by a university without a financial partner. Many applications are abandoned before commercialization is realized. Other witnesses blamed the patenting process for consuming too much of a company’s resources. There has also been talk of emerging problems such as patent “thickets,” where patents are bundled in a way that creates obstacles and uncertainty, and the predatory behaviour of non-practising entities that purchase patents to monetize them through lawsuits.
Eisen believes the problems in the patent area are indicative of ones in the IP system as a whole. “It is very expensive to obtain protection and it is very expensive to litigate. I hope that the committee process will spur a recognition that our statutes have fallen behind markets and technology. This is an opportunity to update them.”
Robert Storey, of Bereskin & Parr LLP in Montreal and a past president of the Fédération Internationale des Conseils en Propriété Intellectuelle Canada, says the biggest controversy that needs to be addressed is what may or may not be patentable. He refers to the recent Federal Court of Appeal decision on Amazon.com Inc.’s “one-click” patent. “One of the decision’s highlights was the importance of establishing with as definite lines as possible what constitutes patentable subject matter.” Storey also cites the deemed abandonment provisions as being badly drafted and in need of correction.
Eisen thinks one of the most important parts of the equation is to have skilled and experienced examiners at the Patent and Trademark Office who hold the same notion of what is patentable or what is registerable as a trademark as IP professionals. He referred the committee to the Amazon case as an example of where the profession and the patent office were working at cross-purposes, saying, “It’s extremely inefficient, resulting in many office actions and spinning wheels.”
The Industrial Design Act is also seen as needing urgent attention. Storey notes it was drafted well over 100 years ago, and was badly done then. “CIPO examiners struggle with it and there is not a lot of jurisprudence to guide them. There is great scope for improving how it could be used.” He cites the fashion industry as one market that could benefit from access to a low-cost form of protection. Lapin points to the problem that applications are reviewed on the basis of previously lodged designs, not on whether there are similar designs that are already out there.
There are also proposals for court reform. Eisen speaks of the need for  incorporating new technology and ensuring the court process is cost-effective. Specialist IP courts are becoming something of a global trend and there have been calls for the Federal Court to split off its own patent court. The Federal Court is currently reviewing its rules and one of the issues on which it has requested submissions is whether it should adopt specialized procedures for different types of cases.
Lapin believes most patent lawyers are in favour of a separate court. “It’s such a complicated area and can be intimidating to judges who don’t have a science background. Patent lawyers are always worried that they will get a judge who doesn’t understand the invention.” Storey is one patent lawyer who disagrees, saying there is already harmony between jurisdictions. Katz is also not a fan of a specialized patent court. “You can have a patent dispute where the most important thing is not actually the patent. You need jurisdiction to address all the other issues and look over how the patent problem intersects with other problems. Another advantage of the general court is that parties are not limited in the kind of legal claim they are allowed to bring. They can bring up anything that is relevant.”
For Katz, the message coming through from all sectors is a recognition that there is much more nuance to all these issues. “Our IP laws are the strongest they’ve ever been and strong if you look at international comparisons. If we don’t perform well it’s not because the laws aren’t strong. They may be too strong. The committee should pay attention to that.”
Illustration: Enrico Varrasso
Illustration: Enrico Varrasso
If the relationship between intellectual property laws and innovation had been on the agenda 10 years ago, there would have been a unified call for stronger IP laws. In current reviews of the dynamic between the two, it is evident that many stakeholders have experienced a mind-shift brought about by a recognition that the “more is better” approach to IP rights can be more stifling than productive.

What is a 'custodian interview' and why should I do one?

  • Tech Support
Written by Posted Date: July 2nd, 2012
I find it surprising when litigators choose not to do full “custodian interviews” before beginning the discovery process. An effective custodian interview done at the earliest possible opportunity can improve the discovery process, particularly when electronically stored information is involved.
A custodian interview involves asking people who may have documents relevant to litigation (i.e., custodians) about those documents, where to find them, and what they might contain. Custodian interviews are just old-fashioned lawyering, applied to e-discovery. Custodian interviews are also lawyer work product and, arguably, are subject to litigation privilege.
These types of interviews are useful because they help you to identify all the locations where custodians have paper or electronically stored information and can provide information about which electronic records each person created, received, and accessed, and where these are stored. Information from these interviews can help you preserve and collect potentially relevant documents and identify, at an early stage, those documents that do not need to be collected. Determining early what is available and relevant can ultimately help lower the costs of e-discovery by simplifying the collection process and ensuring that litigation holds are implemented so spoliation and destruction of records is avoided. These interviews can also establish the basis for arguing
proportionality in meet-and-confer conferences or on a discovery motion, because they will provide you with information to show how the cost of collecting or producing electronically stored information may exceed the value of the claim or the utility of the information sought in the litigation.
The best time to do custodian interviews may depend on how the litigation and fact finding is unfolding. I prefer to do them as early as possible and preferably in conjunction with establishing litigation holds to make sure that no potentially relevant information is destroyed. I view custodian interviews as a natural extension of the early fact interviews conducted of individuals with knowledge of the case. Custodian interviews can be understood as another step in gathering information that can be used to advise the client about the possible manner in which the litigation and discovery process may unfold.
There are two categories of custodians to be interviewed: IT custodians and end-user custodians. Where companies or organizations are involved, IT custodians are the people responsible for the overall management of the information technology systems. Where there are extensive paper collections of documents that are systematically organized, a records manager or person responsible for those paper records might also be included in this group. The second category, end-user custodians, includes people who created, received, or accessed the potentially relevant documents at issue. They are asked about their habits and practices in working with documents; about the computing devices and software they used while creating, accessing, or receiving those documents; and about all the locations where those documents might be.
I prefer to do IT custodian interviews first, because with a single interview I can gain valuable insight into company practices and obtain information that may be relevant to multiple end users. I use the IT custodian interview to ask for any applicable IT policies and procedures, including the acceptable use policy and social media policies (if these are relevant); about how the computers are configured; which computer applications people have available; how e-mail is made available to end-users; and to obtain a data map — a diagrammatic representation of the computer system, which will help guide me through the IT systems much like a geographical or topographical map guides me through landscape.
In this age of smartphones and cloud computing, I also ask the IT custodian about peripheral devices that are made available to end-users, and whether the company may store its data outside its own systems. I can also ask the IT department to generate reports about each user’s particular configuration, including available hardware and memory size, the number of e-mail accounts available to a user, and reports on places where that person can store data.
End-user custodian interviews help you understand how each particular user created, received, or accessed documents. You can ask the end-user about what information he or she might have in relation to the issues in the litigation. I also ask about working styles, how they organize or “folder” information, and whether there is any special terminology or naming convention they use that can help me sort through or search information. This information can help me target the preservation and collection of documents and can form the basis for developing search terms for use in searching or reviewing documents. I also find out if the user accessed information through home-computing systems or mobile devices including smartphones. In addition, I ask custodians who else they worked with in order to determine whether the custodian list is complete. Doing so may help me identify other people who should be interviewed.
Some lawyers may feel uncomfortable doing a custodian interview, particularly if they are working with electronically stored information for the first time. It is acceptable to involve an expert, such as a vendor, or a lawyer or clerk specialist, but I recommend that a lawyer with responsibility for case preparation sit in on the interview to make sure the correct information has been collected. A lawyer’s participation in the interview helps ensure the conversations are kept privileged and the focus of the information gathering remains on the issues in dispute.
Finally, as with any witness interview, it is important to take good notes. I can often identify gaps in evidence collection simply by reviewing my notes for the custodians in the aggregate. I also compare my notes from custodian interviews to the evidence collected when this becomes available. Many lawyers will find it unsurprising that evidence witnesses, much like fact witnesses, get the details wrong about their own documents and data or simply aren’t truthful. I find it helpful to learn about these evidentiary misunderstandings and omissions early, and prior to oral discovery.
Photo: Shutterstock
Photo: Shutterstock
I find it surprising when litigators choose not to do full “custodian interviews” before beginning the discovery process. An effective custodian interview done at the earliest possible opportunity can improve the discovery process, particularly when electronically stored information is involved.
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