172 THE ADVOCATE
VOL. 78 PART 2 MARCH 2020
documents are not duplicates because marked up on page five or bereft of
an attachment, and which ones contain your client’s own privileged notes
that in the debate over production of native files somehow slip through
to the other side. Needless conversations and energy seem to be devoted to
undoing issues that were allowed to occur without clapping eyes on full
The abundance of computerized resources can also sometimes be paralyzing.
We used to rely on editors of law reporter series to do the work of
identifying and indexing the important cases; subjects and sub-issues used
to be conveniently organized for us by editors of various digests (and indeed
still are, but those digests seem no longer to be consulted as often, judging
by research results that are chiefly the product of keyword searches in a
computer database); and our firm’s librarian helped identify the texts worth
purchasing for review. Now one has millions of cases from all over the
world, and commentary of a vast range of varieties, available by computer.
It is difficult to resist the urge to search rather than stepping back and focusing
on arriving at a principled view based on a limited but well-established
range of traditional sources.3
Identified above are problems rather than solutions. However, to the
extent we pay more attention to what is happening and why, and how it is
worse (or in some respects better) than what preceded it, we might start to
think more of ways to improve a situation that sometimes feels untenable.
1. Daniel J Levitin, The Organized Mind: Thinking
Straight in the Age of Information Overload (Toronto:
Allen Lane, 2014).
2. Ibid at 18–19.
3. The English Court of Appeal noted in CEL Group Ltd
v Nedlloyd Lines UK Ltd, 2003 EWCA Civ 1716 at
para 25: “One of the curses of the common law
method in the 21st century is unlimited accessibility
to authorities, reported and unreported, and apparently
unlimited resources for copying them. … On
the other hand, one of the blessings is the availability
of up to date and authoritative textbooks on almost
every relevant subject, in which the material cases
have been sorted out and digested.”