Canada: Managing Class Actions For Success Part 4: Managing The Defence Team

Like any complex litigation, successfully defending a class action requires a team of people to work together effectively and efficiently. A typical defence team will include one or more members of the organization's in-house legal staff, witnesses or subject matter experts from the organization's business units, members of the organization's information technology (IT) staff, lawyers and other professionals from an outside law firm, e-discovery service providers, contract review lawyers and potentially experts. In the case of multi-jurisdictional class actions, it may also include law firms in other jurisdictions.

In this blog post, we look at how to manage class action defence teams for success by clearly defining roles, responsibilities and expectations of team members and encouraging efficient and effective communication. We apply those ideas to the management of multi-jurisdictional class actions.

Defining Roles, Responsibilities and Expectations

Defining roles, responsibilities and expectations for each team member is critical to the efficient and effective management of a project. A responsibility assignment matrix, sometimes referred to as a RACI matrix/diagram, is a formal tool that is sometimes used by project managers to help assign roles and define expectations in a complex project. A RACI matrix helps provide structure, clarity and transparency to each member of the team.

The acronym RACI usually stands for Responsible, Accountable, Consulted, and Informed:

• Responsible – The person(s) who are doing the work to produce the deliverable or achieve the task.
• Accountable – The person who is ultimately answerable for the completion of the task. A person may be both responsible and accountable. Each task should have one person who is accountable for the completion of that task.
• Consulted – The people whose opinions are sought in connection with a task or deliverable.
• Informed – The people who are affected by the task or who otherwise need to know about it. These people should be kept up-to-date on the progress of the task, but whose opinions is not sought.

A RACI matrix defines which roles are Responsible, Accountable, Consulted and Informed for each task or deliverable necessary to complete the project.

In the class action context, a formal RACI matrix may not be necessary, but the same principles can (and should) be followed to help drive efficiency and manage defence costs. Sitting down with the team at the outset and clearly defining expectations of team members for litigation tasks and deliverables in terms of roles, responsibility and accountability has a number of significant advantages:

• Precisely defining tasks or deliverables – If multiple people/roles are accountable or responsible for a task, that usually indicates that the task needs to be divided into sub-tasks. This greater precision helps the team members understand what they must do and when. Greater precision also helps with estimating costs.
• Avoiding misunderstanding of expectations – When expectations are clearly defined, the likelihood of team members misunderstanding the expectations of them can be reduced.
• Improving co-operation – As class actions typically involve multiple organizations and multiple functional teams within the client organization (Legal, IT, business units), it is unlikely that one team member has the authority to direct everyone else on the team. Defining tasks and expectations encourages voluntary participation by all involved.
• Reducing risk of gaps, overlaps and confusion – Defining expectations of team members for each task reduces the risk of gaps (no one assigned to a task), overlaps (too many roles assigned to a task) and confusion (unclear expectations for a task).
• Clarifying communications – If roles and responsibilities have been clearly defined, team members who have no involvement in a task or deliverable don't need to be copied on emails or invited to meetings, and there is no confusion about whose comments need to be sought and who has the "last word" on revisions.

Managing Communications

In addition to emphasizing the importance of properly defined roles and expectations, project management models also stress the importance of a communication plan, which describes how to meet the communication needs of different stakeholders. At a high level, a communication plan typically addresses: (i) Who is the audience for the communication?; (ii) What do stakeholders want or need to know?; (iii) When should communications take place?; (iv) Who is responsible for communications?; and (v) How should information be communicated?

In the class action context, developing a communication strategy tends to be less formulaic, but is still critical to defending a claim in a cost efficient manner. Establishing clear parameters for communications can increase efficiency and responsiveness and avoid confusion and surprises:

• What are the timelines for review and approval? If multiple stakeholders within the client organization need to review and approve litigation deliverables, those communication requirements should be built into the plan for that deliverable.
• How should outside counsel communicate with internal stakeholders? Some client organizations prefer all communications with outside counsel to flow through in-house counsel; others prefer outside counsel to communicate directly. If necessary, a communications lead can be assigned, especially if there is a formal reporting structure that needs to be followed.
• How will documents be shared among the team? Most class actions are document-intensive, and sharing documents by email is highly inefficient. Documentary evidence can be shared among team members using litigation support software that is accessible over the Internet, and drafts and other deliverables can be shared through a secure extranet web site.
• Should there be a kick-off meeting? At the outset of a class action or at the beginning of each new phase, such as document production, it can be very helpful to organize an in-person meeting among the team members to explain the background, objectives and deliverables. Such a meeting can create or enhance working relationships between team members from different organizations or functional units, ensure all team members understand the context and objectives of the litigation, confirm team members' understanding of their roles and responsibilities, allow team members to raise any obstacles or constraints that should be factored into planning, and help all team members feel like they are part of the team.
• How should media inquiries be addressed? Class actions often raise public and media relations issues, and communications strategies may range from making no comment to providing extensive information about the organization's position. A media/communications strategy for the class action should address whether external counsel can contact media or respond to media inquiries and if so, what approvals are required before doing so.
• How should updates be communicated? It is important to communicate updates or developments in the class action and how they may impact the future defence of the action and the litigation team. For example, if the statement of claim is amended to add a new cause of actions, responsibilities needs to be assigned to those involved in developing the response or collecting new evidence.

Managing Multi-Jurisdictional Class Actions

Organizations operating nationally or internationally increasingly face the risk of class actions in multiple jurisdictions, such as different Canadian provinces or in both Canada and the United States. Defending multiple class actions in various jurisdictions magnifies the complexities by, among other things, significantly expanding the size of the team and possibly number of law firms required to defend all of the litigation.

There are essentially two models for organizing the defence of multi-jurisdictional class actions: a coordinating counsel model, where one firm is engaged to coordinate the defence of class actions in multiple jurisdictions, with local counsel engaged as and when necessary, and a multiple counsel model, where different firms are engaged in each jurisdiction.

Both models have advantages and disadvantages. The coordinating counsel model can be very effective in defending class actions in multiple Canadian jurisdictions, particularly when coordinating counsel has expertise in class actions in both the common law provinces and Quebec. The coordinating counsel is responsible for developing the overall strategy, ensuring consistent treatment across jurisdictions and managing the overall flow of information. The multiple counsel model, on the other hand, can be more efficient and effective when dealing with cross-border situations because of the significant procedural and substantive differences between Canadian and U.S. class actions.

Under either model, however, defining roles and expectations and establishing a communication strategy can help address issues typically encountered in multi-jurisdictional cases, such as:

• How will information and documents be shared between the teams or sub-teams engaged in each case? How and to whom will developments in each case be communicated? Who is responsible for managing the collection and review of documents?
• Who will prepare litigation deliverables, such as pleadings, affidavits or written submissions, for each case? Who will to be consulted on litigation deliverables? Whose approval is necessary for each deliverable?
• Who is accountable and responsible for ensuring local practice rules and deadlines are met in each jurisdiction?
• Who will give advice regarding a course of action that has implications for multiple cases?
• Who is responsible for regular reporting to clients?

Failing to address these issues can lead to situations where too many team members are involved in a task or activity, where effort is duplicated or otherwise wasted, or communication breakdowns, where a firm or the client is not provided with information it needs. This will necessarily have corresponding impact on cost.

Conclusion

Project management principles emphasize the value of clear delineation of roles and expectations and clear, regular communications. Although formal RACI matrices and detailed communications plans may be unnecessary for most class actions, defining roles and expectations for team members and confirming how communications will take place at the outset of the case can improve the effectiveness and efficiency of the entire defence team.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.