Western Canada Commercial Arbitration Society: “Using Technology in Extensive Document Arbitrations”
On September 21st, 2020, the Western Canada Commercial Arbitration Society (WCCAS) presented a panel discussion on Using Technology in Extensive Document Arbitrations, as part of the inaugural Canadian Arbitration Week.
Grant Sprague, the Alberta Deputy Minister of Energy, began the session by providing introductory remarks on the impact of COVID-19 on the energy industry, Alberta’s recovery plan, and the emerging regulatory framework surrounding energy projects in Western Canada. Sprague also addressed the future of oil sands, explaining that it would continue to dominate Alberta's energy industry for the next decade. He went on to discuss the integral role that the province's current pipeline projects will play in the global market, as well as Alberta's plans for responsible energy development. Grant concluded that the province seeks to implement sustainable local practices that encourage investment in Alberta. These energy projects are expected to generate future business and corresponding arbitration.
Moderated by Clarke Hunter (Norton Rose Fulbright), the first panel consisted of Brian Casey (Bay Street Chambers), Alexandra Mitretodis (Fasken), Peter Sanford (Deloitte LLP), Lloyd Wilks (CounselQuest ), and Tanya Barbiero (Davies Ward Phillips Vineberg). Panelists were asked to highlight the uses and impacts of technology in extensive document arbitration.
Brian Casey representing the arbitrator’s perspective, described technology as an indispensable tool for legal counsel. However, technology can be a double-edged sword; while it increases efficiency, it also produces a large volume of information that can overwhelm legal counsel and hinder their efforts to present their case as a clear narrative. Therefore, at the case assembly stage, counsel should decide on their technology platforms early, and ensure that the final documents are relevant, material, and logically sequenced. When using technology at the hearing to present and manage documentary evidence, in order to ensure that the tribunal is comfortable with the technology, counsel should discuss their chosen platforms with the arbitrators as soon as they are nominated. Furthermore, Casey highlighted the importance of ensuring that hyperlinks and pages are properly numbered, and that witness reports and exhibits can be searched and reviewed by arbitrators.
Peter Sanford demonstrated the technology used by Deloitte to review and distill the large amount of information involved in a case. Specifically, Sanford introduced “Brainspace”, an application that produces a bird’s-eye view of the material and assists document review experts in identifying gaps. Sanford also demonstrated the use of Technology Assisted Review (TAR), which allows lawyers to review documents. These technologies identify relevant and material documents that can be incorporated into written and oral arguments.
Next, Alexandra Mitretodis gave a presentation on using cloud-based platforms for evidence management. Cloud platforms are virtual hearing binders that allow parties and tribunals to store, access, search, index, and privately annotate their files throughout the course of the arbitration. Mitretodis introduced platforms such as CaseMap, Opus Magnum, Exhibit Manager, and Strutlegal. Some of the advantages offered by these cloud-based platforms include being paperless, efficient, secure, and remote work-friendly. However, Mitretodis noted that these platforms require a third-party provider and can be costly. Moreover, counsel should consider that cloud-based platforms require the tribunal to be proficient with the technology, and these platforms are most efficient if introduced as early as possible in the lifespan of the case.
Lloyd Wilks and Tanya Barbiero concluded the session by presenting on the use of iPads and other tablet computers during hearings. Some of the key advantages of “paperless hearings” include eliminating the need for printing and allowing counsel to edit documents in real-time. Furthermore, these devices accommodate a variety of file types and allow for seamless transition from the review to presentation stage. To facilitate the use of tablets, parties should develop an Electronic Arbitration Hearing Protocol that addresses the types of hardware allowed, the responsibilities of each party in transferring files, the parties’ consent, and confidentiality. However, Wilks and Barbiero noted that there may be cases where it would not be appropriate or feasible to have a paperless hearing. Before deciding to rely on this kind of technology, counsel should consider the expertise of the parties involved and the cost of providing the required hardware and software.