IT teams capture corporate data from the network onto backup tapes daily. In the case of a catastrophic failure, or even user error, specific files and email can be restored from the backup environment. Therefore, every file created or edited and every email written is copied to a secure, typically offsite, location for safe keeping. These backups represent “point-in-time snapshots” of the files and email on the network and servers. So the email in a custodian’s inbox on June 30 or a contract created by a specific user, including revisions of this file, has an identical copy backed up by IT every day.

The ESI that is backed up to tape is secure and unspoiled. Users do not have access to this data. It cannot be modified and is a 100% accurate representation of what existed on a specific date. In order to be confident that no spoliation has occurred, instead of requesting data from the online network, legal teams should be issuing requests for data that was backed up to tape on the dates in question. No preservation letter is needed; the data is already preserved by the IT department during routine backups. Access to this data is easy, it is all collected and exists on tapes that are typically stored in offsite vaults. Additionally the request for this data is far less invasive as it will not require access to live corporate networks for the collection.

Since secure, preserved data exists on offline backup tapes, why are legal teams still issuing preservation letters for easily corruptible online data? Because, previously, backup tape data wasn’t easy or cost effective to access. As a result, legal teams have been forced to work with the more accessible data that exists online.

New technology now makes data on offline backup tapes accessible. Data that is locked away by IT during the routine backup process previously required specialized skills and great expense to access. The tapes are generated using proprietary software that collects the data and places it into a backup container that is copied onto tape. This process has required this software to gain access to the data through restoration of the content, typically by 3rd party specialists. This is why in the past it was expensive and time consuming to gain access to files and email on old backup tapes. However, this is no longer the case.

This data is now easily available using new automated tape discovery tools. When ESI is required, simply request the appropriate backup tapes from the client. These tapes are typically dated, so it is not difficult to find the relevant tapes for a specific timeframe. The tapes are then automatically scanned and indexed, so that they are searchable. Legal teams can then specify the specific metadata and content they require. For example, if you require a specific custodian’s mailbox, or a copy of a contract from June 2000, or even a general search of specific mailboxes to look for sensitive keywords, all data is now easily accessible via simple query terms. The relevant emails and files can then be extracted from tapes quickly and economically without any spoliation. The original backup software is not required, in fact it does not require any specialized technical resources to get the job done.

As a result of this new approach, legal teams can now be confident they have the data they need to support or defend against a law suit, and be sure that it is accurate, as it is a snapshot of the content as it existed on the date required. Anyone who wants to tamper with or influence the outcome of a case no longer has access to potential evidence. The method of leveraging backup tapes for ESI preservation is far more accurate and secure than the traditional method. No longer do you need to issue a preservation letter – just ask your clients for their tapes. They are already preserving what you need. Not only does this new approach eliminate the risk of spoliation, but technology also remedies the worrisome turn around time and cost of eDiscovery as well.

The post The Remedy for eDiscovery Angst – Backup Tapes appeared first on Slaw.

I suggest that there is too much emphasis on what “tool” we are using, while forgetting two other key elements in any successful technology application or deployment; process and people. Having conducted investigations and eDiscovery projects for over 12 years, where I have leveraged technology in finding the nuggets of facts, at the end of the day if you are requested to testify, it all boils down to your training, experience, processes and methodologies used (notice I did not say “tools”). The risk is not to confuse process and methodologies as being synonymous with tools. Software tools are used to perform particular types of functions, while a user will employ methods, practices, procedures that will leverage such software.

If we look that the EDRM model which represents a conceptual view of the e-discovery process; the eDiscovery approach should be determined by the merits of the case (each of which will be unique) – in other words there is “no cookie cutter approach”. Moreover I would offer the following challenges faced by an organization that requires understanding “before” making any key strategic decisions as to how to execute an eDiscovery project:

• Information Management and Identification – poses the “greatest effort”; do we know what we are looking for? Do we know where it exits? Who and what is in scope?
• Information Preservation and Collection – poses the “greatest risk”; is the collection forensic or logical? Who is performing the actual collection/preservation? Do we capture only local email files (e.g. OST ) versus server/network email files (e.g. PST ), or both?
• nformation Processing, Review and Analysis – is the “greatest cost”; has it been determined if the review team is domestic or offshore? Does the data require hosting? Does the security of the hosting solution meet the data security standards of the organization? Have we managed privacy and confidential information exposure risks in processing?

On reviewing the decision of the Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC (S.D.N.Y. Jan. 11, 2010), Judge Scheindlin identified some key failures that require consideration by those managing eDiscovery projects (by the way – there is no mention of software tools within the 87 pages decision):

1. Identification of key players – ensure that the list of potential custodians are understood. Consider including those that have confirmatory knowledge who may validate the central facts of the matter, the secretaries of c-suite individuals are good examples.
2. Preservation of emails – ensure that a user understands the practicalities in order to complying with the legal hold letter. Accidental deletion of emails by a user must be considered as a real risk in the preservation of ESI and appropriately managed.
3. Supervision and management of document collection – few employees are experienced in conducting searches of relevant ESI. Declaring to the best of one’s knowledge in the absence of “..experience in conducting searches, received no instruction on how to do so, had no supervision during the collection, and no contact with Counsel during the search” – will only increase risk, costs and may result in a potential “negligence” or “gross negligence” ruling by the courts.

In order to manage these risks an effective project manager should to be established; who will be accountable for applying process and methodologies to identify and then mitigate the risks – a defensible strategy. The challenge for organizations is to understand the benefits versus the total costs associated with eDiscovery activities. As Adam Smith wrote in the Wealth of Nations; “It is the maxim of every prudent master of a family, never to attempt to make at home what it will cost him more to make than to buy”. Charging employees or internal IT departments with identification, preservation, collection and pre-processing activities may have cost advantages however; this needs to be balanced with the risk that there is a likihood they will have to articulate their training, processes and methodologies – for others to critique. An eDiscovery project is about process, people and technology; “T’ain’t What You Do (It’s the Way That You Do It) and that’s what gets results”.

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The competing need was the law firm who wanted the most comprehensive set of data and the corporate client who wanted reasonable costs associated with the process. The process being the need for effective management of electronically stored information so that appropriate legal representation and advice could be offered.

What should both clients learn from this process?

1. Know your scope of the project at the outset: costs and other factors may influence and change the scope, but you need to be flexible because proportionality (common sense) should rule the day.
2. Have your homework done in advance of engaging an eDiscovery expert: legal should define the need, the client IT staff provide the required information, and the external expert will provide the guidance, options, and related costs.
3. It should not just be about money: although the bottom line and cash flow is king to a business, the cost should be considered in the context of the need and balanced with the approach.

What was I reminded by this experience?

1. Just as cash flow is ‘king’ to a business, scope of work is ‘king’ to mine.
2. Educating clients to appreciate the magnitude of what is being asked is not always an easy accomplishment.
3. It is a fine line to walk to strongly advocate opinions and best practices that are not being heard.
4. Planning is just as important as execution

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Today, while the industry continues to evolve and grow, eDiscovery processes and technologies have matured and a well-established community of experienced experts exists to help clients navigate complexities and risks. Solutions are robust, scalable, reliable, easier to learn and, most importantly, are more cost effective than ever been before.

So why isn’t every law firm doing eDiscovery?

Much has been written and discussed about the significant risks to lawyers and clients if eDiscovery continues to be ignored. Despite these often fear mongering tactics, many law firms and lawyers have continued to ignore eDiscovery. Some experts have written that change will only come with changes to the rules, sanctions, court orders, or loss of reputation. While I know this type of forceful approach may eventually prove successful, I believe there is a case for change that is more inspiring and hopefully less painful.

In recent months, I have engaged many of our law firm clients in direct conversation about the level of adoption of eDiscovery within their firms. Without exception, law firms recognize that the idea that lawyers can ignore or avoiding eDiscovery forever is not realistic. Most lawyers I have met with comment that it is not that they don’t want to do eDiscovery, they simply don’t know where to start, don’t have the time to learn the technology and do not want to burden their clients with unnecessary costs and risks, particularly in today’s economic environment.

As a growing technology company, change is part of our daily routine. We have successfully implemented and used a change management model provided to us by a consulting firm named the Fulcrum Group. The model has been so well liked by our staff, that many individuals keep copies of the model on the wall in their office. I thought this model might provide value to law firms who are looking for a place to start and a way to embrace change. It involves six critical elements:

1. Build the Case for Change:
Begin by discussing, debating and building consensus with key stakeholders as to why the adoption of eDiscovery is important within the firm. While the natural place to start may be compliance with jurisdictional rules and practice directions, other reasons could include; mastering eDiscovery will position our law firm as an industry leader; pro-actively addressing eDiscovery considerations will reduce risks for our clients; understanding how to manage electronically stored information (ESI) will provide additional value to our clients and provide a competitive advantage over other law firms; eDiscovery will enable us to have greater access to information and empower us to collaborate more effectively with our internal legal team, with outside experts and with the client.

2. Committed Leadership:
Mastering eDiscovery and implementing change requires committed leadership. Change requires a champion within the firm who has the desire, enthusiasm, power and authority to influence change and is committed to a successful outcome. If the leadership is not present at a senior level within the law firm and the partners are not bought in to the merits of collecting, reviewing and producing electronic evidence, then adopting new methodologies will be challenging…. if not impossible.

3. WIIFM (What’s in it for me?):
Embracing eDiscovery and influencing change requires that individuals within the law firm environment personally experience value over traditional methodologies. If this element is missing, then the initiative will be perceived as insignificant, a waste of time… “not worth it”. WIIFM can sometimes be as simple as demonstrating a single feature or benefit that dramatically improves the results over a traditional approach.

4. Concrete Planning:
Creating a practical and workable plan for implementing eDiscovery processes, best practices, protocols and technology within a law firm is essential to aligning resources, managing costs, meeting deadlines, clarifying the objectives and outlining how they will be achieved. Financial analysis showing a return on investment will provide powerful ammunition for individuals who are resistant to change.

5. Appropriate Tools:
Choosing the right technology and making sure you have the right resources in place are essential to reaching your goals. While some people believe the right technology is all you need to be an eDiscovery expert, my experience has taught me that a technology solution is only as good as the processes, people and plans that have been put in place to support the success of the technology. Always test before your buy to ensure the tools will meet the desired outcomes. If the tools are not properly implemented, don’t meet expectations or simply don’t work, the results can jeopardize your goals and leave stakeholders feeling discouraged and committed to sticking with a traditional approach.

6. Reinforcement:
Evaluate and assess the outcomes of your plan to ensure the results have proven successful and worthwhile. Many people forget to revisit their original goals and to validate that the objectives have not only been met, but have been felt and recognized by stakeholders throughout the organization. This is an opportunity to celebrate achievements and to revisit elements that are not working. If the reinforcement and on-going evaluation is not present, users, stakeholders and clients may not be experiencing the benefits of eDiscovery and the longevity and compliance with the new systems will be unsustainable.

eDiscovery does not have to be challenging, costly or time consuming. To realize the benefits, the first step begins with embracing change.

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Successful searches of electronic data must produce information that is useful not only in what it tells you but in a volume that can be reviewed. The most efficient to achieve this is by constructing a list of terms that can be used to search through digital evidence to identify the most relevant documents for review. 

Selecting search terms may seem easy enough: pick terms that describe what we are looking for and search whatever electronic documents we’ve recovered. But careful selection is critical unless you want to review responsive yet irrelevant documents. Here are some elements to take into account when building thinking about searching electronically stored information:

• Determine what is to be searched: emails, documents, deleted files? Careful determination will reduce the number of hits to review and allow you to focus on what matters. Keep in mind that a focused search may provide you with focused results but may also prevent you from finding critical elements if the scope is too narrow.
• Be careful of generic terms: they will likely produce a large volume of irrelevant documents to review to determine relevance. The term “confidential” may be critical to the review but the organization may be including an automatically generated disclaimer at the bottom of all its e-mails that contains the sentence, “The content of this message is CONFIDENTIAL.”
• Be mindful of language: what may be targeted in English may be generic in French. Also, think of building your list of search terms in English and French (and any other language you think appropriate).
• Short words may produce a tall amount of work: short words, such as abbreviations, might produce thousands of search hits. These terms might be contained in random text patterns such as those contained in remnants of deleted documents or binary system files found on the computer system.
• Be wary of “embedded” words: short words may be contained in others. For example, if we’re searching for the word “car” as part of scheme involving the use of company or rental cars, the term would flag documents containing “North Carolina,” “South Carolina,” “carriage,” “carries,” “Carnegie Hall,” and thousands more. 
• Corporate culture: organizations make up their own language. Organizations have words derived from internal acronyms or inside language that only employees might use to describe elements specific to the organization.
• Some words may mean nothing to you, but they mean something to the computer. For example, if you searching for any documents relating to the “Atlantic” region of Canada, you should keep in mind that any system file containing a reference to the “Atlantic” time zone will be identified which could mean a lot of useless files to review.

In closing, it should be noted that the keyword selection process should be a joint effort by those involved in the case. This insures that adequate terms are selected and that they meet the objectives of all involved.

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Having interviewed a wide range of E-Discovery professionals I know first-hand the wide range of experience and qualifications that exists in the current marketplace. It’s my responsibility to identify for clients the true level of capabilities a candidate brings to the table. The uses of software such as Summation vary from data entry to much more complex functions. When exchanging discovery information electronically, if not done correctly, a firm is potentially exposed to their own litigation. Certification would qualify the depth of knowledge of the user, and establish where further training may be required.

One of the solutions put forward by the litigation support community to the issue of minimum skill levels since late 2006 has been to create some kind of industry certification. As many of you will know, there are a number of existing certifications floating around already. However, most are product-specific (e.g. Summation, Concordance and LAW certifications), some are vendor-specific (e.g. Kroll’s eDiscovery certification), and many are specific to the US market (e.g. LitWorks highly-regarded certifications). You also find litigation support professionals with forensics (e.g. Encase and the Certified Computer Examiner) and general IT certifications (e.g. CompTIA’s A+). However, none of these have the independent, international, industry-wide authority that is needed for a young profession to stake out what it is — and isn’t — part of a litigation support skill set.

The Association of Litigation Support Professionals (of which I am an active member) was started in November 2006 to address some of these problems. One of the concerns being raised at the time by the wider litigation support community was that if litigation support professionals did not define for themselves what skills a litigation support professional should have, then other professional organizations (ABA, ARMA, among others) would do it for us. And the problem with that is the bias that these other organizations would have towards their own skill sets: no doubt the ABA would consider knowledge of US law more important than the ability to parse data correctly; ARMA might consider knowledge of retention guidelines more important than knowledge of the limitations of TIFFs as a production format. Of course, knowledge of the law, civil rules and guidelines appropriate for your jurisdiction are important, as is some grasp of what records should be kept, and for how long; but these are both only a small part of what a litigation support professional should know.

One concern that many have had in Canada is the relevance of an organization like ALSP to Canadian professionals. After all, discovery in Canada is not the same as discovery in the US, and a certification that requires knowledge of the US FRCP is not going to be helpful in determining the ability of Canadian litigation support professionals. But with the recent merger of CALSP into ALSP, and the distinctly Canadian voice of Michael Condé, Litigation Support Manager at Borden Ladner Gervais on the board of directors, there is no danger of Canadian needs being forgotten. And if you want to add your own voice to ALSP, there are ALSP chapters in both Toronto and Vancouver; or you could start your own.

ALSP is not the only organization out there that is developing an independent, industry-wide certification. Chere Estrin has recently started the Organization of Legal Professionals. Its board of governors reads like a who’s who of eDiscovery in the US, but it’s unclear as yet if the certification they are developing will be solely focused on US needs, or will have an international focus also.

Regardless of who provides the certification the industry needs, it is needed — if only to provide guidance to those who hire litigation support professionals. Although the days of your neighbourhood copy shop claiming to have eDiscovery expertise may be over, it’s still worth having independent verification of someone’s claimed expertise. And for those just getting into the profession, a certification provides a means of proving your knowledge at a basic level, even if you don’t yet have the years of experience.

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The obvious challenge with eDiscovery and the tools and approaches we use to address the needs for identifying, preserving, collecting, processing, reviewing, and producing ESI is that every case might be different or at least some distinct nuances. The differences may be the hardware, software, data formats, amongst many other variables. Although there may be a lot of ‘Microsoft bashing’ that goes on from Mac ‘fans’ or others who are the defenders from perceived monopolies there are benefits to be had from the ‘mainstream’. Having some commonalities in the technology world of email communications and business applications allows for the development and improvements of eDiscovery tools that can build upon previous releases, research and development. However, eDiscovery does not allow us to only focus on the mainstream we need to address all curve balls that technology may offer – what I refer to as the ‘fringe’. And this is where some of the real challenges of eDiscovery come in to play – there is no eDiscovery in a box solution.

With litigation support tools, we might invest in one technology to assist with managing our evidence whether it is documents, transcripts, or work product developed based upon the evidence. And invariably, we will complain about the lack of features or how the program is not as intuitive, or wishing it could do x, y and z. If you and your staff have been properly trained, you will leverage some of the benefits of efficiencies and effectiveness of evidence management tools through different stages of the litigation process. But if the ESI was handled properly from the beginning, you issues are not with the integrity of the evidence but how to review, analyze and understand the evidence.

eDiscovery tools are a bit different and some confusion starts to arise as these tools are also now being used during the review stages and in some cases even production. It is important to remember eDiscovery tools must be able to effectively manage ESI (ie track sources, deduplication, reporting), extract metadata, and export information in a variety of useable formats. The fundamental importance when working with eDiscovery tools is that the integrity of the data has to be maintained and a clear audit trail exists throughout the process. If you are using only ONE eDiscovery tool, then perhaps you are the ‘tool’.

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Threshold

First, York University v. Bell Canada Enterprises is of interest in respect of its finding regarding the first element of the test for a Norwich order. Prior to York University v. Bell Canada Enterprises, it was arguably well-established that the first element in the test for Norwich order is that the applicant must demonstrate a ‘bona fide’ claim, as opposed to a prima facie case. (See e.g. GEA Group AG v. Ventra Group Co. 2009 ONCA 619 (CanLII)). The difference between these two thresholds was discussed at length in BMG Canada Inc. v. Doe, 2005 FCA 193 (CanLII). The Federal Court of Appeal rejected the latter threshold, finding as follows:

In my view, it would make little sense to require proof of a prima facie case at the stage of the present proceeding. The appellants do not know the identity of the persons they wish to sue, let alone the details of precisely what was done by each of them such as to actually prove infringement. Such facts would only be established after examination for discovery and trial. The appellants would be effectively stripped of a remedy if the courts were to impose upon them, at this stage, the burden of showing a prima facie case. It is sufficient if they show a bona fide claim, i.e. that they really do intend to bring an action for infringement of copyright based upon the information they obtain, and that there is no other improper purpose for seeking the identity of these persons.

In York University v. Bell Canada Enterprises, the court held that “the plaintiff had established a prima facie case of defamation and the claim appeared to be reasonable and made in good faith”. However, this finding should not be read to suggest that a prima facie case must be demonstrated in future Norwich applications. A better reading of the decision is that the court was of the view that the applicant had made out more than the required bona fide claim.

Notice

Second, as in most applications to compel the identity of anonymous Internet users, in York University v. Bell Canada Enterprises there was “No one appearing for the Respondents”. The court alluded to the possibility of ordering that the targeted individuals be notified so that they could object (through counsel) to the disclosure of their identities. However, without explaining the reasons for its finding, the court held that this was not a case where the targeted individuals should be notified:

…it may be appropriate, in a given case, to require that the unknown publisher of the offending material be given notice of the proceedings. It does not appear to have been done as a matter of course in other Norwich order cases and I did not consider it necessary to do so in this case.

In future cases where privacy interests are balanced against the interests of a Norwich applicant in pursuing a potential claim, the question of whether notice ought to be given to the affected individuals will undoubtedly arise again. To date, Canadian courts have not pressed the question of whether a Norwich order for identification ex parte to the targeted individuals is appropriate where the party from whom the disclosure is sought could itself provide notice to the targeted individuals.

In the copyright infringement context, many Canadian ISPs participate in a ‘notice and notice’ system whereby they forward notices to subscribers that copyright owners allege have engaged in infringement. This practice demonstrates that notices are technically feasible in many cases. Indeed, in another Norwich case, BMG Canada Inc. v. Doe, 2005 FCA 193 (CanLII), some ISPs voluntarily notified their customers of the Norwich application that had been brought against the ISPs. However, Canadian courts have yet to provide guidance on if and when notice ought to be ordered by the court.

On the other hand, where an applicant for a Norwich order does not wish the ISP or other entity to provide notice to the targeted individual, the applicant can either seek that assurance from the ISP prior to seeking a Norwich order, or consider obtaining an order for same, perhaps ex parte to the ISP if appropriate. This may be critical in, for example, a fraud case where the applicant does not wish to tip off the target that the applicant is pursuing him or her and where multiple parties may have to provide information in succession in order to ultimately identify the target.

Expectation of Privacy

Finally, York University v. Bell Canada Enterprises reinforces the notion that the terms of service of an individual’s ISP can be a key factor in determining whether an individual has a reasonable expectation of privacy in their Internet usage. For example, R. v. Ward 2008 ONCJ 355 (CanLII) (On. S.C.) and R. v. Kwok 2008 WL 1995837 (On. S.C.) emphasized the relevance of looking to the language of the ISP policy or subscriber agreement in determining whether a reasonable expectation of privacy exists in the information sought. In York University v. Bell Canada Enterprises, the court reviewed the Bell and Rogers terms of service and held that:

A Bell customer can reasonably contemplate, therefore, that his or her identity may be disclosed by order of the court in the event he or she engages in unlawful, abusive or tortious activity.

and that:

the internet service customer(s) who published the communications could not have a reasonable expectation of privacy in relation to the use of the internet for the purpose of publishing defamatory statements.

The reasoning above includes a pre-supposition that the targeted individuals have engaged in unlawful conduct. Although the court was clearly of the view that wrongdoing was evident on the facts of the application, the above reasoning misses the fact that the very purpose for the disclosure of the individuals’ identities is to permit the plaintiff to sue and ultimately to determine whether or not the alleged tort was in fact committed. In other words, at the time that the court is assessing the privacy interest on a Norwich application, it does not know whether the targeted individual is part of the class of innocent Internet users or the class of unlawful Internet users. Accordingly, individuals’ privacy expectation ought not to be defined on the premise that they are in the latter category.

Therefore, instead of stating that individuals have no reasonable expectation of privacy in their Internet usage based on the assumption that the allegation against them is true, the better analytical framework within which courts might approach Norwich applications for identifying information would be to start from the position that individuals have an expectation of privacy in their Internet usage, including their email accounts, (unless there are reasons to conclude the opposite in a given case) but that courts may pierce that expectation of privacy in a limited manner in appropriate circumstances where unlawful activity appears to have taken place. Although this framework would likely have produced the same outcome in York University v. Bell Canada Enterprises, it would arguably have done so in a manner that better balanced Internet users’ legitimate privacy interests against the need for the applicant to have disclosure.

The post <em>York University v. Bell Canada Enterprises</em>: Observations and Implications for Future Norwich Jurisprudence appeared first on Slaw.

Because not all governments and court administrators have developed appropriate systems for e-trials, some judges have taken it upon themselves to foster and manage the use of technology in the courtroom. What happens to your client’s exhibits when they are handed to the judge on a CD? For that matter, how is the draft decision in your case – being prepared on the judge’s laptop – protected from loss, or breach of privacy? Does the court have a backup of your electronic appeal book, and if so, who has access to it?

The Judges Technology Advisory Committee (“JTAC”) of the Canadian Judicial Council is currently in the final stages of revising its landmark Blueprint for the Security of Judicial Information (“Blueprint”). Originally published in 2004 and updated in 2006, the 2009 version is a document that all judges and lawyers should be anticipating. Why?

The paperless court is a reality in a growing number of jurisdictions. But as counsel hand up CDs of scanned documents or USB drives with electronic evidence, as electronic appeal books are copied onto court networks, or as pleadings are uploaded to e-filing systems, how much thought is put into the security of all that information?

By the late 1990s some federally-appointed judges were awakening to the possibility that their increasing use of technology on and off the bench was subject to certain risks, not only due to the inherent limitations of digital technology, but to the structural design of court technology infrastructure. Some of their key concerns were:

1. Do the provincial systems supporting judicial use of technology meet industry standards for security?
2. Is judicial use of computers in the courthouse subject to monitoring by administrative staff?
3. Do the acceptable use policies that apply to government employees apply to judges?
4. Who is accountable for the security of judicial information?

To answer some of these questions, the Canadian Judicial Council (whose mandate is federal) surveyed every court with federally-appointed judges with a comprehensive questionnaire. The survey was prepared and the results compiled by JTAC. In November 2001 JTAC reported its findings to the Council, making the following recommendations among others:

That the Canadian Judicial Council consider conducting a seminar at its next mid-year meeting to review urgent security issues identified in [the report].

That the Canadian Judicial Council ask all provincially and federally appointed chief justices/judges to:

(a) Establish security of the court’s information system as a priority;

(b) Ensure that policy development takes place at an early stage before the conversion to an electronic environment;

(c) Identify and secure the necessary financial, staff and other resources that are critical to implementation of appropriate security measures;

(d) Ensure that a technology staff member who is accountable to the chief justice/chief judge be appointed to manage the court’s security operations.

To achieve uniformity, that the Canadian Judicial Council take a leadership role by authorizing the Judges Technology Advisory Committee to develop a blueprint that addresses recommended security procedures for all Canadian courts, and ensure that resources are made available to the Committee for that purpose.

The recommendations were accepted, and work began on several policies and awareness training programs. The most significant of these, the Blueprint for the Security of Judicial Information (“Blueprint”), was released in 2004 after an extensive period of consultation.

The Blueprint defines the scope of “judicial information” and establishes the principle that if judges are to be accountable in some way for the security of judicial information, they must be involved in a policy-making role. The Blueprint recognizes that judges and court administrators must work together to strengthen security, but it also focuses on three key concerns: first, there must be no content monitoring of judicial work (this is covered in detail in a separate 2002 policy); second, “Every jurisdiction must ensure that a Judicial IT Security Officer who is accountable to the judiciary be appointed to oversee the management of court information technology security operations” (Policy 1) and third, judicial information – at every stage in its lifecycle – must be segregated from non-judicial information. Policy 10 states:

The configuration of a court’s access control systems must support the principle of judicial independence. Judicial users should be provided with exclusive access to their own network resources unless it can be shown that network architecture, configuration, access controls, operational support and information classification schemes are sufficient to provide the highest level of confidence in the segregation between judicial and non-judicial information, and compliance with this Blueprint and the CJC Monitoring Guidelines.

The Blueprint has had an enormous impact on courts and judges. Since the initial Blueprint was published about five years ago, almost every court across the country has (a) assessed its security systems in relation to the Blueprint; (b) adopted a version of the Blueprint as its security policy and (c) made significant changes to the way judicial information is managed. In addition, at least four courts have now designated “Judicial Information Technology Security Officers” or the equivalent, who help develop policies and monitor compliance from a judicial point of view.

The best hardware, software and network security systems are powerless against users who refuse to follow rules, and imposing lock-downs on an independent judiciary is not always easy. Lawyers should be aware that since the turn of the century federally-appointed judges have participated in extensive information security training, organized and presented by the National Judicial Institute and by individual courts.

JTAC is committed to updating the Blueprint on a regular basis. The 2009 draft was approved by JTAC in June and will be considered by the Council at its next meeting. Once translated into French, it will be posted on the Council’s website. For more information or if you have any comments about the 2006 version, please contact me at mfelsky@felsky.com.

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In light of a number of recent court decisions on e-discovery, counsel and clients must consider, inter alia, the scope of what should be produced in discovery (e.g. whether entire hard drives or other devices need to be produced), employees’ expectation of privacy in devices owned by their employer, whether irrelevant personal information should be redacted, who can review information produced in discovery, and the location where documents can be reviewed.

Privacy concerns during discovery involve the disclosure of information exclusively between private litigants who are subject to the deemed undertaking rule. Yet, privacy must also tangle with the open court principle and particularly with the publication of personal information in court decisions published on the Internet. A recent Ontario case reminds us that the protection of privacy in this context depends in large part on the value that we place on privacy.

Wilson v. Bourbeau, [2009] O.J. No. 1841, 2009 CanLII 22559 (SCJ) involved a motion for redaction of certain personal information or for a sealing order. Such measures are often cited as a means to limit the invasion of a party’s privacy in litigation. The key paragraphs of the decision are reproduced below:

21 Wilson seeks to have redacted, or sealed, a portion of the record of the proceedings before the Board: […] documents [that] include Wilson’s name, her date of birth, her claim number, and medical information relating to the injuries she suffered in the motor vehicle accident in 1997.

. . .

39 Wilson submits that she is not comfortable with having her personal information including sensitive medical information available to the public.

40 As a general rule, a person’s sensibilities, or discomfort must yield to the strong public policy in favour of openness. The discomfort expressed by Wilson is not a basis for removing the information from what will be the public record. As was stated in MacIntyre, supra, at 186-187, “curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance.” In other words, there must be some public interest in the question which justifies the order.

. . .

43 Wilson’s desire to protect her identity and what she describes as “sensitive medical information” does not raise a question of a serious risk to an important public interest. It is a personal view or preference on her part. With respect to Ms. Wilson, no important societal value is involved in her request for a sealing order.

. . .

57 Wilson’s request for a sealing order or for redaction of the specified information is denied.

Contrasted against the foregoing approach, the Supreme Court of Canada recently adopted a new policy to help address privacy issues in court records. The policy includes the following provision: “Personal information, including personal data identifiers, shall not be included in a court record unless it is required for the disposition of the case.” This test of necessity arguably provides a strong protection for privacy. The societal value of privacy is arguably recognized in the test itself. Although it remains to be seen how the test will be applied in practice, other courts might adopt similar tests as important privacy issues continue to arise in discovery and in access to court records and decisions.

Stay tuned for an important Sedona Canada paper addressing privacy issues in e-discovery, expected to be launched later this year (I am one of the drafters). Sedona Canada is also holding a CLE in Vancouver in September 2009. Privacy will be among the issues addressed.

The post Electronic Discovery and Electronic Decisions Highlight Privacy Issues in Litigation appeared first on Slaw.

Let me hasten to add, before I start receiving a torrent of protests, that there are many, many vendors who deliver what they promise, and that often failure to deliver is not a reflection of the vendor’s capabilities (or their promises), but rather issues with communication, changes in project scope, or simply limits of the technology. One terabyte of data cannot be fully processed by next week by anyone that I know of. It’s due to the speed at which computers run, not your vendor’s incompetence.

There have been some attempts to correct this seeming disconnect of some vendors between what they can actually do and what their sales staff say they can do. For example, John Randall came out with a review in 2006 of some of the leading eDiscovery processing software in use at the time. He was refreshingly honest in his assessment of what the various applications would and wouldn’t do and received letters threatening litigation from some vendors’ lawyers as a result. Astonishing, but true. In a more informal way, perhaps the most common single request on the Yahoo LitSupport group is a plea for someone to recommend a vendor in a given location, or for a particular kind of work.

A specific example of how the effectiveness of technology and/or methodology can be overestimated is found in the area of searching litigation documents and data. Over the past few years there has been some significant research done in the field of litigation search technology. Some background might be helpful here, to understand the issues with litigation search technology. As most of you know, once paper documents and data have been collected from the client and processed appropriately, they are loaded into a litigation review tool so the legal team can review them for relevance, privilege, and importance to the issues in the case. A page-by-page review with indexing of the documents was the traditional way to accomplish this, but with the vast amount of data that usually results from eDiscovery, (even after culling based on duplication, date ranges and the like), some kind of search methodology is necessary so as to avoid spending years on review.

Most lawyers are familiar with the basic search technology used in simple litigation review tools such as Summation and Concordance. You type in your keywords, perhaps with some Boolean connectors, hit “search”, and the documents you’re looking for are returned in the search results. Unfortunately, this simple keyword-based method of searching is not adequate.

Enter the harsh spotlight of science.

In 1985, a study was done on the effectiveness of Boolean searching: “An Evaluation of Retrieval Effectiveness for a Full-Text Document Retrieval System,” Communications of the Association for Computing Machinery at 289-99, March 1985. The working paper is available here, abstract of the final, published paper is here. I strongly recommend you read it for yourself. One of the things that made this study interesting was that it was actually done using one of the very earliest technologies used as a litigation support system: IBM’s “STAIRS” (STorage And Information Retrieval System). No doubt it wasn’t the most user-friendly piece of software ever designed, but in the early 1980’s it was revolutionary.

The study was quite surprising: the lawyers using STAIRS believed that they would be able to find as much as 75% of the relevant documents in the collection with keywords. In fact, the number was a paltry and worrisome 20%. Of those documents retrieved with the chosen keywords, 80% were considered relevant. So the recall (number of relevant documents retrieved/total number of relevant documents in collection) was low. Conversely the precision (number of relevant documents/total number of documents retrieved) was comparatively high.

I should point out that the searches were iterative. The lawyers would review the documents retrieved by each search, mark them according to relevance, and then revise the search terms so as to obtain more relevant documents. It wasn’t simply a one-shot search; the searches were revised based on the perceived effectiveness of the original search.

Why were the keyword searches so ineffective? The researchers point out that it has been assumed by those developing or using Boolean keyword-based search systems that it’s an easy matter to accurately predict what keywords will be found in relevant documents, and only the relevant documents. This study demonstrated that this is not the case, and gives some specific examples from the documents used in the study as to the huge variation of language used in even relatively formal business documents when referring to the same thing. (E.g. The “accident” was sometimes referred to as “unfortunate occurrence”, “incident”, “situation”).

Fast forward to 2006. Technology has clearly advanced beyond that found in STAIRS. But keyword searches are still the bread and butter of finding key documents in a litigation matter and haven’t changed that much. With that in mind, the Text Retrieval Conference (“TREC”), a joint project by the National Institute of Standards and Technology (NIST) and U.S. Department of Defense, decided to add a “Legal Track”. The results of their studies have been very informative. Their experiments indicate that Boolean keyword searching only retrieves 22% (as reported in their 2007 paper) of the relevant documents in the dataset. However, taking advantage of the newer search technologies out there, which make extensive use of probabilistic, rule-based and linguistic techniques (for definitions, see the Sedona Conference’s Best Practices paper), you can get higher recall rates (but not much higher for the automated techniques). Where newer techniques were used in conjunction with feedback and advice by designated “topic experts” about the topics that were the target of the searches, recall could be increased to as much as 80% – far more in line with typical lawyer expectations.

The keyword search issues are just one example of something that I, and many others in the eDiscovery and litigation support field, are concerned about. There is a real need for basic research to determine the effectiveness of the tools and methodologies we rely on in eDiscovery matters. Studies, like the one that John Randall conducted in 2006, which aimed to give an independent overview of what certain data processing technologies did well, and did not do well, are very necessary. Independently derived metrics that a vendor’s performance, methodology or software can be measured against is also necessary. Open source software where programmers far better than myself can examine what the source code is actually doing, and improve it in the context of an open debate is one as-yet largely unexplored possibility to increase transparency in the industry. Development of generally accepted eDiscovery processes, procedures and standards would help; especially if claims of adherence to such can be independently audited. A “consumer reports” type of user feedback on software and vendors, free of threats of litigation, would also drive standards higher.

These are all necessary because litigators need to be able to defend their eDiscovery processes in court. They are necessary because litigation support staff at both law firms, companies and at vendors, need to know the limits of the technology they are using, and develop documented workarounds and alternate methods to handle what their standard technology cannot handle.

I do not mean to bash vendors of eDiscovery software and services in this column. There are many good vendors of both services and technology out there who do excellent work within the limits of the technology currently available. But I do believe that as lawyers move from a basic to more sophisticated understanding of eDiscovery that there will be a realization that “I don’t know” is not a defensible answer to “how did you handle your data”. And if lawyers are going to have more of an answer than “I don’t know”, eDiscovery technology and processes has to move away from what is something of an unverified black box model towards independently verified, and/or open and transparent models. eDiscovery vendors may need to be willing to provide subject matter experts to defend their methodologies and technologies (in the US, there is some caselaw that subjects selection of search terms to Daubert analysis – see this article). Alternatively, they may wish to submit their technology to a full-fledged validation by an independent third party – but many vendors will avoid this due to the high cost.

As eDiscovery continues to develop as a field, I believe that we will see far more pressure on vendors to provide evidence that the tools and methods they are using are valid, just as computer forensics professionals are currently expected to do.

It will be interesting to see how this area develops over the next two or three years.

The post The Harsh Spotlight of Science – Coming Soon to a Vendor Near You appeared first on Slaw.

I decided to make a self-assessment of my own technology use and how it would be impacted by “eDiscovery.” As part of my inventory check, I placed all of my electronic business tools that I carry on a regular basis on the pull-out tray. I realized very quickly I needed a larger tray to hold my BlackBerry, cellular phone, laptop, USB key, and an external hard drive.

Although I needed a larger tray, the real questions that came to mind were: is all of this stuff relevant, who is going to look at it and what is it going to cost? And why is that my immediate reaction? As a business, we are for profit, which means at the end of the day, or more appropriately quarterly and annually, we look at our expenses and revenue to see if we made money or not. Anytime we are faced with litigation and discovery obligations we want to limit the ‘amount of stuff that may need to be done.’ In this instance, I would want the lawyer to explain why my electronic gadgets are relevant and what is going to be done to my belongings that I use on a daily basis. The nervous twitch begins as I contemplate BlackBerry withdrawal…for how long I ask? Or perhaps the notion that someone will soon discover that I like to listen to Sugarland or that I have a doctor’s appointment to address high cholesterol will soon become apparent. I realized very quickly that the cold sweat that was breaking out had nothing to do with the airline food (although I did question that) but rather with the fact that I will be inconvenienced and feel my privacy is being violated in some way.

So what can we learn from this self reflection and assessment on eDiscovery? Custodian interviews play an important part in the eDiscovery process. Three important themes arise from my story as a corporate client: privacy, inconvenience, and cost.

In terms of privacy, the reality is that many of us will receive or may access personal emails or electronic material in our business environment. Regardless of acceptable use policies, we may use our email at work to record personal appointments in our calendar, receive a photo from our child as they are playing at a park with friends, or try to move a song from our music account to our iPod. So when I hear you are making an exact copy of my hard drive or perhaps making a copy of my entire mailbox I begin to ponder, did my Uncle Ross quit sending those silly and inappropriate emails? (yes I did ask him to stop). So regardless of the confidentiality that may extend in litigation, I am actually more concerned with privacy. Are there ways to distill relevant evidence quickly and efficiently without baring my soul to the lawyers working for me?

By conducting custodian interviews, not only are you effectively trying to determine what ‘gadgets’ of mine may be relevant, you are also letting me know what the process is about. You instill a small level of comfort that you want to understand how I work to determine where you need to look. Perhaps not all of my gadgets are relevant or require data to be collected from them because you understand when, where, or why I use them. And as such, I may not have to be without my cellular phone or have no BlackBerry or laptop access for two days as it is being ‘acquired.’ You appreciate the importance of minimizing disruption to my business as you go about yours.

Narrowing the scope should help to reduce the cost of processing my data. As well, I have come to realize, what you process will require legal review. And regardless of the billable rates of the lawyers working for me, I know it will be more than my round trip plane ticket to Phoenix. I am not surprised, but I am hopeful that it won’t exceed a the cost of a business ticket for a flight around the world. So I as the flight attendant begins her routine safety instructions of the emergency exits and requests for seats in the upright position, I think back to my conversation with my legal team. They too have described their routine of document review, in particular the instructions for fastening the metadata in a locked position to enable them to utilize technology to my benefit. They have cautioned me that the need for an emergency exit to mediation is not required on this leg of the trip as their approach to review is strategic and leverages state of the art technology. I find comfort not only that my legal team is piloted by a seasoned veteran, but also that her team has the knowledge and experience to ensure we make the right decisions throughout the journey.

By being more precise in your efforts, I hope to see focused preservation, collection, processing, and review of information stored on my ‘gadgets”. This will ensure inconvenience and disruption to my business is minimized, a semblance of privacy may still remain, and the cost of this process wont prevent me from purchasing my next generation ‘gadget’ that will surely be released next month!

The post From PHX to YYZ appeared first on Slaw.

So, on the one hand we have more law firms and their clients being drawn into the need to manage increasingly complex e-discovery; it’s no longer the purview of only the large firms and their large clients. On the other hand, we have increasing costs at a time when clients can least afford it, and more clients facing the reality that just because it’s a little case doesn’t mean that the contents of their servers, smart phones, thumb drives, Gmail accounts and so on are less important to the resolution of the case. And, although I’ve just run out of hands, both law firms and their clients are looking to in-source some or all e-discovery services as a means of controlling costs (and sometimes quality also). How can all the players in e-discovery – law firms, clients, vendors, respond to the issues of cost and complexity?


Last month, Martin Felsky’s article looked at the cost of e-discovery and his suggestions of an iterative and collaborative approach to e-discovery make enormous sense. Even if only meaningful meet and confers were seriously adopted by lawyers we would see a reduction in costs, but I think there is perhaps more that can be done.

Clients that have been through at least one large e-discovery exercise quickly realize that if this is the wave of the future, then it’s just not affordable; particularly for those involved in serial litigations. E-discovery has already been ringing alarm bells among the Canadian judiciary due to its chilling effect on litigation. Cases that shouldn’t be settled out of court are being settled because it’s cheaper to do so than to go through a poorly managed e-discovery exercise. Although I never claim that technology solves all ills (it’s people then processes then technology, not the other way around), careful selection of better technology, along with the right processes, could help reduce costs enormously.


In April, I will be speaking at LegalIT 3.0 with Kelly Inglese (from McCarthys) and Sharon Redding (from Bell Canada) about the use of technology throughout a litigation matter. One of the concepts that I hope we will be able to convey is that the days of using one software solution for every case are gone. There are dozens of technologies available for use at every stage of a litigation matter and they all have their strengths and weaknesses. Unfortunately all this choice simply adds to the complexity of e-discovery.


This overwhelming choice creates a problem for law firms (and their clients). Should law firms go with one “almost does it all” solution, or use several solutions? What about the costs associated with this approach? It costs money to train people on new technology and I think it’s no secret that not all lawyers and legal staff are whizzes at software. And then you have the costs of buying, licensing, administering, updating and managing all that software. The SaaS model at least reduces the costs for law firms associated with having to manage multiple software solutions and allows the firm to cherry pick the most useful best of breed software for that particular litigation. But it’s not always the best solution (for example – data processing is perhaps not best performed over the internet . . .).


What about complexity? E-discovery used to be relatively straightforward. Not cheap, not simple, but relatively straightforward. You’d have a third-party provider come in and collect your data. Then they’d process it for you. And then you’d load it into Summation either for a complete review, or after an initial review in a hosted platform. Finally you’d print off all your non-privileged, relevant documents and hand the 50 boxes of documents over to opposing counsel. If you were at the cutting edge of technology, you’d exchange documents electronically.


With the maturing market in e-discovery, there are now several different ways of handling e-discovery from start to finish. Not only are there multiple choices of technologies to use throughout the process, but there are also different workflow options to choose from. Now, I don’t want to be misunderstood here – the EDRM model is alive and well and not going to change any time soon. But within this model are several paths that can be taken depending on a number of factors, such as the litigation readiness of the client, and it is this multiplicity of paths that adds to the complexity of an e-discovery project, and also increases the likelihood that costs won’t be well-managed. This may seem counter-intuitive, but it’s often the attempt to impose “one-size-fits-all” processes and technology onto different litigation situations that creates problems, and problems always result in higher costs.


So once again, we’re back to the need for planning. As “one-size-fits-all” e-discovery doesn’t exist, it’s important to take a broad-based look at how technology can help manage a particular litigation. Every litigation matter will follow the EDRM roadmap, but the detailed paths through that roadmap may be radically different. A company that has an enterprise content management (ECM) solution in place, with litigation hold and sophisticated search features in place is not going to require the same services from an e-discovery vendor that a company with no such technology requires. A large law firm with a well-staffed and well-funded litigation support department will only require help with processing the largest of data sets, or perhaps only selected types of data.


Given that “who does what” is going to change from firm to firm, company to company and case to case it is perhaps more important than the actual technology that all the players in an e-discovery matter are more flexible, more responsive, and more intelligent in their litigation road-map, and the associated use of technology. This might be the only rational response to the twin issues of cost and complexity, but is hardly the magic bullet solution that we would all undoubtedly prefer.

The post A Changing Landscape appeared first on Slaw.

There’s no question that doing ediscovery properly from beginning to end throughout a contentious matter involving large entities isn’t free and we know that compared to traditional kinds of discovery (which can be done in dribs and drabs over the course of preparation for trial) that using electronic tools and gathering electronically stored information will always involve an upfront cost that is surprising to many and unwanted by all. But in addition to their inability to justify ediscovery to their clients, lawyers often have an irrational fear of ediscovery costs being out of control. These fears derive from some of the early U.S. cases in which parties came to court complaining of potential costs in the millions (for restoring all backup tape sets or searching through all data on a network) and those cases, having been reported, are clearly going to discourage any party from confidently moving forward with an ediscovery plan in hand.

Admittedly there are cases where a lot of money is spent and has to be spent: for example, large-scale investigations or prosecutions (often on the securities side) where cases involve complex transactions, allegations of fraud, a long history of communication amongst numerous parties – in these types of cases it can be very costly to prosecute as well as defend. Another problem with the perceived high cost of ediscovery is that in many cases, lawyers and their clients alike feel that all of the data that has been collected, processed, and to be reviewed, is irrelevant, but it all has to be done anyway, because the Rules say that production has to complete and everything potentially or remotely relevant to any issue in question must be produced. So we go through the exercise to collect and review gigabytes of data reluctantly even with a degree of cynicism and resentment..

To tell one story along these lines, at a recent meeting with senior counsel on a case involving approximately 1.2 terabytes of captured data and a $75,000 proposal, after discussing various aspects of our discovery plan I asked a plain question: “To give us some guidance in terms of how to proceed with the culling of this data, and based on the type of case that this is, what you know already, and the key documents that you’ve already been able to see, is it your gut feeling that these hard drives are likely to contain some helpful or harmful information that you’re anxious to get your hands on? ” Without skipping a beat the answer came back: “No, this stuff is mostly crap.”

That type of situation gives e-discovery a bad name. All of the above can be avoided, all of these issues can be resolved in a way that is reasonable and effective, but certain things have to happen first:

1. Lawyers have to develop an understanding of the true practical nature of e-discovery and not only gain an understanding of what the potential costs are but what the potential benefits and savings are too. Paying $75,000 to collect, cull, de-dupe, process, and host a million critical documents in a $200 million litigation seems almost free to me. On the other hand, in a nuisance lawsuit, it’s almost criminal.
2. Lawyers have to understand the importance of an effective plan and an meaningful meet and confer process. Without collaboration with the other side, e-discovery can easily be ten times more costly than it needs to be.
3. We not only have to read the Sedona Principles, we must demonstrate some courage in applying them. This means that where data sampling and a phased approach is indicated, it should actually be proposed and done. Where we have diligently preserved and collected data from 100 custodians, we should propose to process documents of (say) the 10 key custodians, and review their data first, before moving on (if ever) to the other 90. As part of a collaborative, ongoing process of unfolding discovery, costs can be not only spread out a little bit more over time for the client’s benefit, but costs can be contained at any time in the process, given the rule of diminishing returns.
4. The approach often taken by law firms to linear review needs to be looked at more closely, and I don’t just mean by incorporating concept search engines, which are obviously being used more commonly (and are adapted into review platforms such as Ringtail and iConect). Not only do these types of tools need to be considered, but other tools such as relevancy ranking, e-mail threading, and near-duplication detection can provide enormous cost savings overall even though they might be associated with an up-front cost.
5. We know that in most Canadian jurisdictions right now, the Rules are inadequate to deal with the fact that organizations and individuals maintain decentralized and impossibly huge and growing collections of data that are not business records; that are not needed for business purposes; that are not required under document retention or limitations legislation. Lawyers have three options:

   a. Plead the Rules to justify an inordinately expensive discovery (for the other side)
   b. Plead the Rules to justify avoiding e-discovery altogether (for your client)
   c. Use the Rules to fashion a process that works, that is practicable, and whose cost makes some sense.

The post Is E-Discovery Too Expensive? appeared first on Slaw.

Cost-shifting in Canada occurs at the end of the litigation, at which time the unsuccessful party may be required to contribute, in whole or in part, toward the costs, including fees and disbursements, of the successful party. These loser-pays rules are not present in the United States, where cost-shifting is frequently used.

The issue of cost allocation in electronic discovery cases has not been clearly resolved in Canada. Principle 12 of the Sedona Canada Principles recommends a collaborative approach when addressing the issue of the costs of e-discovery, and that all “reasonable costs” of producing electronic information should be borne by the responding party, the costs associated with the retention, retrieval, reproduction and review of electronic records can be burdensome. It appears that neither the Ontario Rules of Civil Procedure nor the Supreme Court Rules fully contemplate these cost realities. Rule 1(5) of the British Columbia Supreme Court Rules provides that the object of the Rules is the “just, speedy and inexpensive determination of every proceeding on its merits.” The Ontario Rules of Civil Procedure contains a similar provision. In addition, the Ontario and Alberta Rules provide that copies of documents requested for inspection are to be made at the requesting party’s expense.

The difficult issue of which party should bear the burden and expense of electronic discovery was addressed by the Saskatchewan Court of Queen’s Bench in Bank of Montreal v. 3D Properties. There, the defendant applied to the court for an order requiring the plaintiff bank to produce various documents, including computer records, disks and tapes in or upon which records were kept that related to the action and from which the documents included in the plaintiff’s statement of claim originated. The court held that the word “document” included information stored by electronic means and required production subject to the following conditions:

1. The plaintiff will be entitled to first edit out all information contained in or on said “document” that is clearly protected against disclosure as being privileged and confidential;
2. The plaintiff will not be required to alter the format of the data contained in said “document”: computer records, discs, and/or tapes. The plaintiff is only obligated to produce copies of same (as edited) to the applicant in its present existing form;
3. All reasonable costs incurred by the plaintiff, including inter alia, searching for, locating, editing, and producing said “documents”: computer records, discs, and/or tapes for the applicant shall be at the applicant’s cost and expense. An estimate shall first be provided to the Applicant by the plaintiff. The amount thereof, for so many of said documents which it determines it requires as specified by said applicant in writing, shall then be immediately deposited into Court before the plaintiff shall be obligated to produce them for and to the said applicant. The final cost, when determined, shall be paid out of said monies “in Court” or by said monies “in Court” being forthwith supplemented to cover any cost in excess of the said deposit. If any issue arises over what is considered for this purpose to be “Reasonable Costs” same will be settled by me on application, and unless on a date and time consented to, on notice.

   An entirely different result with respect to the allocation of costs associated with electronic discovery was reached by the Manitoba Court of Queen’s Bench in Cholakis. The court held that the defendants were responsible for the costs of reviewing and editing the electronic records to remove any irrelevant information that the defendants did not want to disclose to the plaintiff.

   In JDS Uniphase Inc. v. Metconnex Canada Inc. the parties attempted to comply with the Ontario e-Discovery Guidelines in that they discussed the method of exchanging and producing documents in an electronic format. The Plaintiff and Defendant shared the costs and the Defendant applied to recover their half. Master Beaudoin declined, stating that costs would be settled at the end. Master Beaudoin opined that in order to make the interim cost award sought:

   I would require clearer evidence that the production of the database in the revised format was of benefit to both parties in the litigation or to the court or that the costs of the electronic production resulted in a disproportionate burden for one of the parties.

   Canadian Judges therefore do not seem receptive to adopting Sedona Principal 2 instead of relying on the traditional rules, as one judge stated:

   The mere fact that electronic discovery is at issue should not change the rule that the producing party presumptively pays for the production. Cost shifting should be considered only when electronic discovery imposes an undue burden or expense on the producing party. The question usually turns on whether the electronic information is kept in an accessible or inaccessible format, which in turn depends on the type of media used to store the information.

   The Sedona Principles recommend that the interim costs of electronic discovery should be borne by the party producing the documents pending the final disposition of an action. The British Columbia Draft Practice Direction also considers transferring costs of searching for and discovering electronic documents. Generally, the Practice Direction provides that the costs associated with applying the Practice Direction should be included in keeping with Rule 57 of the Supreme Court Rules.

   The issue of e-discovery costs when significant quantities of electronically stored information are involved is a controversial one. The scarcity of Canadian jurisprudence and the inapplicability of American case law to Canadian litigation due to the latter country’s loser-pay regime, leaves the status of this issue unsettled.

   In general, the traditional rules of documentary discovery in respect of costs should prevail, requiring the producing party to bear its own expenses of production, in special circumstances. The traditional scope of discovery will have to be narrowed, however, in the context of voluminous ESI, and the courts in Canada will have to consider cost-shifting, if the costs of litigation are to be kept in check.

   The post E-Discovery: Can the Clients Afford It? appeared first on Slaw.

   ]]> https://www.slaw.ca/2009/01/10/e-discovery-can-the-clients-afford-it/feed/ 4 https://www.slaw.ca/2008/12/02/us-federal-rule-of-evidence-502/ Tue, 02 Dec 2008 15:42:30 +0000 http://www.slaw.ca/?p=4898 The Federal Rules of Evidence have now been amended to include a new Rule 502 [PDF], which should represent a sea change in the law of waiver in the United States. Rule 502 is intended to introduce uniformity in the law of waiver of attorney-client privilege and work production protection throughout the United States courts and, through operation of the Commerce Clause of the United States Constitution, among State courts.

   The problem that led to the enactment of the Rule is the sheer volume and expense that arises from the review of perhaps millions of documents that are “electronic” in . . . [more]

   The post U.S. Federal Rule of Evidence 502 appeared first on Slaw.

   ]]> The Federal Rules of Evidence have now been amended to include a new Rule 502 [PDF], which should represent a sea change in the law of waiver in the United States. Rule 502 is intended to introduce uniformity in the law of waiver of attorney-client privilege and work production protection throughout the United States courts and, through operation of the Commerce Clause of the United States Constitution, among State courts.

   The problem that led to the enactment of the Rule is the sheer volume and expense that arises from the review of perhaps millions of documents that are “electronic” in nature. A party may inadvertently produce “protected” materials, and that inadvertent production may lead to waiver or privilege or work product. It is now commonplace for parties in a given litigation to enter into a so-called “claw back” or, more rarely, a “quick peek” agreement to protect against waiver of inadvertently produced materials. However, what happens when a nonparty seeks access to those inadvertently produced materials arguing that, regardless of the binding effect of an agreement between the parties, there has been a waiver as to anyone else?

   One answer was suggested by Chief Magistrate Judge Grimm in Hopson v. Mayor and City Council, 232 F.R.D. 228 (D. Md. 2005). Judge Grimm suggested that, if parties entered into a nonwaiver agreement as a result of a “meet-and-confer” under Federal Rule of Civil Procedure 26(f), and that agreement was embodied in an order, any inadvertent production would be made under “judicial compulsion” and there would be no third party waiver. There was no certainty, however, that such a result could be obtained in other federal or State courts. See Henry v. Quicken Loans, 2008 WL 474127 (E. D. Mich. Feb. 15, 2008). Rule 502 is intended to provide that certainty.

   Rule 502 does address a number of matters related to privilege. Subsection (a) deals with intentional waivers of otherwise protected materials “in a Federal proceeding or to a Federal office or agency.” Waivers extend to undisclosed materials if the waiver was intentional, what was disclosed and undisclosed concern the same subject matter, and the materials “ought in fairness *** be considered together.”

   Subsection (b) deals with inadvertent production in federal or State proceedings.” It provides that there is no waiver if the disclosure was inadvertent, reasonable steps were taken to prevent disclosure, and reasonable steps were promptly taken to rectify the disclosure. Subsection (b) refers to Federal Rule of Civil Procedure 26(b)(5)(B), which established a uniform procedure for the federal courts to address inadvertent waiver. Note that Subsection (b) can operate independent of any party agreement.

   Subsection (c) addresses disclosures in State proceedings. Assuming there is no controlling State order, inadvertent disclosure is not a waiver in a federal proceeding if the disclosure would not have been a waiver if it had been made in the federal proceeding and if the disclosure “is not a waiver under the law of the State where the disclosure occurred.”

   Subsection (d) is, in many ways, the heart of Rule 502. It provides that, “[a] Federal court may order that the privilege or protection is not waived by disclosure connected with the litigation before the court—in which event the disclosure is also not a waiver in any other Federal or State proceeding.” This allows parties to enter into claw back and quick peek agreements, presumably without fear that by doing so they will waive protection elsewhere.

   Subsection(e) states that agreements between parties in federal proceedings bind only themselves. Subsection (f) states that Rule 502 is binding in diversity actions pending in federal courts “even if State law provides the rule of decision.” Subsection (f) also states that Rule 502 “applies in State proceedings and to Federal courts ***.”

   Rule 502 raises a number of questions. Among other questions:

   1. Is it constitutional as applied to States?
   2. Should parties simply enter into nonwaiver agreements and not seek orders?
   3. Should parties enter into quick peek agreements that are embodied in orders and effectively do no privilege review?
   4. Should a federal judge simply enter a nonwaiver order on party consent or require some showing of “good cause” to do so?
   5. How will nonparties challenge nonwaiver orders?

   Only time—and judicial interpretation—answer these and other questions.

   The post U.S. Federal Rule of Evidence 502 appeared first on Slaw.

   ]]> https://www.slaw.ca/2008/11/14/the-importance-of-knowledge/ https://www.slaw.ca/2008/11/14/the-importance-of-knowledge/#comments Fri, 14 Nov 2008 15:15:54 +0000 http://www.slaw.ca/?p=4526 I am always very surprised to see and hear that there are still some lawyers, judges, CIOs and other officers who don’t know what Electronic Discovery is. Actually, this is not true. I am not surprised, and why would I be about something that we are only forced to learn when we are exposed to it. Most people learn about e-discovery when they are involved in a lawsuit. Why would I be interested in it if I am not involved in a lawsuit? Well, there are 2 reasons: I want to make money from it, which is a very good . . . [more]

   The post The Importance of Knowledge appeared first on Slaw.

   ]]> I am always very surprised to see and hear that there are still some lawyers, judges, CIOs and other officers who don’t know what Electronic Discovery is. Actually, this is not true. I am not surprised, and why would I be about something that we are only forced to learn when we are exposed to it. Most people learn about e-discovery when they are involved in a lawsuit. Why would I be interested in it if I am not involved in a lawsuit? Well, there are 2 reasons: I want to make money from it, which is a very good reason; or simply because, as a good manager, I want to be ready before it hits me, which is a better reason.

   You never know when it will hit you

   I was exposed to E-discovery in 2001. Already then, e-discovery was known in the United States. I was going to say well known but my experience convinced me otherwise. Because of my expertise as a technical consultant for a legal department, I was asked to coordinate the e-discovery process of an important litigation. I soon came to realize that the success of such a process is intimately linked to knowledge. What knowledge, I can hear you ask? In this case, it was my lack of knowledge of pretty much all aspects of e-discovery. What I knew then was the technology used in a legal environment. I didn’t know much about law and I don’t know more about law today. I knew I had to seek help to succeed. That was my knowledge then. So there I was with a very important task at hand, which was given to me out of the blue.

   The song remains the same

   7 years later, I can see that the same questions I was asking myself then are still the questions raised today and that the issue of the adoption of the e-discovery by the legal community is still a big battle. Some people will tell me that it as been adopted but I think it is done more as an obligation than out of free will. I think the constant evolution and the emerging of new technologies every day makes it very difficult for law practitioners. What am I saying? It makes it difficult for everybody.

   For me, there are 3 aspects to the problem.

   The first aspect is to know what technology is available, how it can help and when it should be used. What is forensics and when and why to use it? Do I need litigation software?

   The second aspect is even more challenging. The use of computers, software, file servers, networks, portable devices (PDA), scanners, mobile disk, Internet, e-mails and more in every aspect of our work, has made it very difficult for any individual to fully understand the ramifications and the impact of every part of a company’s technology infrastructure. Now documents, which used to be a simple piece of paper, can be a video, e-mail and even a database. What about metadata and log files? The very definition of a document is now a matter of debate.

   The last aspect is time. I mean time in every way you know it. Sometimes cases go back 3 and 4 years. The technology used by your client then may be different to the one in place today, which makes it more difficult to retrieve all the information. Since electronic documents are more likely to change, migrate, duplicate and/or disappear than the paper documents, again retrieving the pertinent documents in the ocean of data become challenging. Time to learn technology and how to use it is also a part of the equation and what about the time required to handle the e-discovery process altogether?

   My conclusion about e-discovery is that it is not really complicated. In fact, I think it is simple. The reason why it may seem complicated depends on the knowledge or more precisely on the lack of knowledge of a single individual about all aspects of technology and his need to find help and good knowledge resources. In better terms: you have to be ready for it.

   Project Management

   First of all, an e-discovery action is a project. It has a start and an end. It has milestones, resources, deadlines and so on. It can be a long and lengthy project or a very small and short project. Understanding that we need a good project manager to achieve success in an e-discovery action is not only important, it is crucial.

   By definition, Electronic Discovery is the collection, preparation, review and distribution of electronic documents associated with legal proceedings. This you probably already knew. I didn’t in 2001. What I knew then was the life cycle / phases of a project; initiating processes, planning processes, monitoring & controlling processes, executing processes and closing processes. Following those phases provided me with enough structure to draw a path to success. So I suggest either you learn about project management or find yourself a good project manager to help you.

   Resources and knowledge Management

   Even today it is hard to find someone who has heard about e-discovery, but if you have a good business network, you will find eventually someone who has handled e-discovery processes but only after much research. In 2001, in Canada you could count the number of people who knew about e-discovery on the fingers of one hand. I was lucky enough to meet Martin Felsky (Commonwealth Legal) at the LegalTech show in Toronto and then Steve Rogers (Digital Evidence International) who provided me with knowledge and direction. What I am trying to say is simply that e-discovery makes no exception when it comes to contacts. You need good ones. Don’t wait until you need help on the matter, plan ahead and develop good partnerships.

   Many large law firms have developed those partnership with forensic expects and e-discovery vendors. But even firms with 4 to 10 lawyers can have their preferred vendors. Large corporations and even SMB should take some time to seek knowledge on e-discovery. The task should not be too difficult since the number of vendors is limited. Also, it is easier to find the right partner when time is on your side.

   Document Management

   I became very good in document management through this exercise. I didn’t have much choice. One of the main tasks of the planning phase was to identify where documents were located. And let me tell you that there are as many ways to organize and structure document repositories as there are employees in a company. I realized that there is really only one way to reduce the cost of e-discovery for the corporate world and it is by putting in place a well planned and structured document management infrastructure and culture. The cost of putting a document management system in place is easily overrun by the cost of e-discovery in a large corporation.

   Document management begins with a document retention policy redacted by the legal department with the collaboration of every departments of the company in order to be implemented across the company. I can provide you with a very good contact in the person of Dominic Jaar of Ledjit Consulting to help you with the redaction and the implementation of a good document retention policy. Dominic can also help you with all your e-discovery needs.

   With good document management you should be able to control the information coming in and going out your organization. It helps you retrieve your information when you need it and it can also, if well planed, help you save storage capacity on your servers by reducing the number of duplicates of the same documents or its number of versions.

   Less or more, small or big

   We have a tendency to think that e-discovery is only for big volumes of documents and big lawsuits. It is not true. In the case of an employee who misused the company computer, it can be helpful to have a forensic expert to capture the data contained in the hard drive for analysis. It does not represent a big volume of documents and it is a quick process.

   Determining the scope of the e-discovery helps you reduce the volume of documents as well as the cost associated to it. Active data vs. passive data, time range and which custodians are some questions that should be raised early in the planning process.

   Finally what is knowledge?

   If everything were perfect, corporations would have documents management systems in place. They would have developed partnerships with e-discovery vendors who would have helped their information technology departments put in place the tools to reduce the costs of a lawsuit involving e-discovery. They would have developed a relationship with a law firm well aware of e-discovery, who themselves have retained the service of an e-discovery expert to help them on their files.

   The lesson is that together we know more than we do individually… It is so true for e-discovery.

   The post The Importance of Knowledge appeared first on Slaw.

   ]]> https://www.slaw.ca/2008/11/14/the-importance-of-knowledge/feed/ 2 https://www.slaw.ca/2008/10/15/legal-minds-gather-in-toronto-for-inaugural-e-discovery-conference/ Wed, 15 Oct 2008 13:20:35 +0000 http://www.slaw.ca/2008/10/15/legal-minds-gather-in-toronto-for-inaugural-e-discovery-conference/ Litigation counsel and their clients have long been put on notice that electronically stored information may become the subject of requests for production. The scope of the duty to preserve, and the breadth of the type of electronically-stored information subject to the preservation obligation are not always readily apparent. In fact, when coupled with the reality that huge volumes of material maybe involved, e-discovery has the potential to increase litigation costs to staggering levels.

   Electronically stored information has and will continue to change the way people do business and store business related information. For lawyers, it has changed how they . . . [more]

   The post Legal Minds Gather in Toronto for Inaugural E-Discovery Conference appeared first on Slaw.

   ]]> Litigation counsel and their clients have long been put on notice that electronically stored information may become the subject of requests for production. The scope of the duty to preserve, and the breadth of the type of electronically-stored information subject to the preservation obligation are not always readily apparent. In fact, when coupled with the reality that huge volumes of material maybe involved, e-discovery has the potential to increase litigation costs to staggering levels.

   Electronically stored information has and will continue to change the way people do business and store business related information. For lawyers, it has changed how they should advise their clients regarding their production obligations when litigation is pending.

   The Inaugural Sedona Canada Program on Getting Ahead of the e-Discovery Curve is a two day conference to be held in Toronto on October 23-24, 2008 that offers an opportunity to gain valuable insights into best practices for e-discovery, and practical strategies to meet judicial expectations, while reducing costs. The conference is the first of its kind to be held by Sedona Canada, the Canadian version of the well-known U.S. think tank, The Sedona Conference® which is responsible for The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production and other important resources.

   The Sedona Conference® Canadian Working Group on Electronic Document Retention & Production which evolved into Sedona Canada is the non-profit law & policy think-tank that developed The Sedona Canada Principles Addressing Electronic Discovery. Sedona Canada was formed out of the growing recognition that the discovery of electronically stored information can no longer be seen as a peculiarity of litigation in the U.S. involving huge dollars or limited to complex commercial lawsuits. E-discovery is now a reality for business organizations of all sizes.

   Sedona Canada’s purpose is to develop best practices recommendations for lawyers, courts, businesses and others who confront e-discovery issues. The upcoming conference is the first event where Sedona members will share their expertise, insights and experiences. The conference will be featuring Sedona Canada’s expert faculty including esteemed members of the Bench, leading practitioners and experts.

   The panelists will include The Honourable Mr. Justice Colin L. Campbell of the Ontario Superior Court of Justice, Master Calum MacLeod of the Ontario Superior Court of Justice, and legal practitioners such as Susan Wortzman, founder of Wortzman Nickle and the Chair of the Steering Committee of Sedona Conference® Working Group 7, Sedona Canada, and Co-Chair of the Inaugural Program together with Kelly Friedman, a litigation partner with Ogilvy Renault LLP and Co-Chair of Sedona Canada Inaugural Conference, Dominic Jaar, legal counsel at Ledjit, an information management, e-discovery and law practice management consulting firm, Jonathan Redgrave a founding partner of Redgrave Daley Ragan & Wagner and Steering Committee Chair Emeritus of The Sedona Conference® Working Group on Electronic Document Retention and Production (WG1), as well as Martin Felsky of Commonwealth Legal, David Gray, a partner in the Litigation Group of McCarthy Tétrault in Montréal, Glenn A. Smith, one of the five founding partners of Lenczner Slaght, Karen Groulx, a partner at Pallett Valo LLP, Peg Duncan, Department of Justice, Canada, Robert Deanne, a partner with Borden Ladner Gervais LLP in Vancouver, Ron Hudges of Nixon Peabody, Kenneth J. Withers, Director of Judicial Education and Content for The Sedona Conference®, as well as other members of the bench and bar from both Canada and the U.S. Panel discussions will focus on 7 key areas:


   • The Sedona Canada Principles
   • Management of Electronic Information to Avoid Costs in Discovery
   • Cost-Shifting & Sanctions – Judicial Advice
   • Legal Holds: The Trigger & the Process
   • Multi-Party, Multi-Jurisdictional, Class Actions & Other Complications
   • Cooperation with Opposing Counsel on Common e-discovery Issues
   • New Roles and New Teams to Manage e-discovery Successfully

   


   You can find out more about Sedona Canada’s upcoming conference in Toronto at The Sedona Conference web site at http://www.thesedonaconference.org.

   The post Legal Minds Gather in Toronto for Inaugural E-Discovery Conference appeared first on Slaw.

   ]]> https://www.slaw.ca/2008/09/22/electronically-stored-information-a-reality-check/ https://www.slaw.ca/2008/09/22/electronically-stored-information-a-reality-check/#comments Mon, 22 Sep 2008 15:11:17 +0000 http://www.slaw.ca/2008/09/22/electronically-stored-information-a-reality-check/ Huge volumes of business data are nothing new. But the ways data can hurt you these days – well, that’s a different story. In an age when your company can rise or fall on how they manage their information how an organization manages its ever-growing mountains of data can be the difference between a good day at the office and sheer disaster.

   Some organisations take a “wait and see” approach to controlling information. They keep their fingers crossed for nothing to go wrong – and then call in help when it does. That’s a short-sighted view that creates more risk . . . [more]

   The post Electronically Stored Information: A Reality Check appeared first on Slaw.

   ]]> Huge volumes of business data are nothing new. But the ways data can hurt you these days – well, that’s a different story. In an age when your company can rise or fall on how they manage their information how an organization manages its ever-growing mountains of data can be the difference between a good day at the office and sheer disaster.

   Some organisations take a “wait and see” approach to controlling information. They keep their fingers crossed for nothing to go wrong – and then call in help when it does. That’s a short-sighted view that creates more risk than reward. Because something always goes wrong. The only question is whether they’ll be ready for it or not.

   Understanding challenges associated with electronically stored information will allow the organization to mitigate risks associated with the production of such information.

   Stand and Deliver

   An order to produce documents sounds simple. Carrying it out can be frighteningly complex for an organization which has never been faced with this. For example, what’s a document? From telephone logs to minutes, the SEC’s definition runs more than a hundred words. Needed documents may reside on a legacy electronic media for which the organization may no longer have the appropriate reader. Meeting the demands of a court or regulator is half the challenge. You’ve got to make sure finding and producing records doesn’t grind your business to a halt.

   • What is the organisation doing with data from departing employees, inactive clients and historic transactions? This information may need to be produced in a timely fashion and without understanding where this information and how to access it, organizations may be faced with a much greater challenge than originally thought
   • Can a litigation hold be implemented without halting or even affecting IT operations? Other functions of the organization need access to the information to operate and cannot be deprived of access to it. A well documented procedure becomes critical

   Turn On the Lights

   When organisations start identifying where evidence resides, its often like turning on the lights in a cluttered basement: they don’t exactly know where it is and once they’ve found it, it a challenge getting to it. The same thing could be said of e-discovery, organizations need to locate and preserve data.

   • Can the organization easily identify where the targeted information resides and how to produce it? From backup tapes to the latest PDA, it can be a challenge to recover information. Furthermore, finding the information in complex document workflow systems and Enterprise Resource Planning and Customer Relationship Management systems can prove challenging when the organization does not understand how information is created, stored and destroyed.
   • Are proper computer forensic procedures followed when information is being extracting from the media where it resides? Data retrieved without regard to its admissibility in court might as well never have been detected and collected. Proper procedures should be followed when handling and extracting electronic information whether it be for investigations or litigation.

   Entrusting your data

   When data stays within the organization, it maintains control over it. This is no longer the case when it ends up being outside the organization. And in most cases, data ends up being hosted at an outside facility by an e-discovery provider. But when it leaves the premises, you need to know who has it – their reputation, their facilities, their location and the regulatory environment they work in.

   • Are there controls in place to make sure offsite data is adequately protected? Third party hosting providers should provide highly secure facilities for storing such sensitive information. Adequate physical and logical access control is critical
   • What laws and regulations govern the handling of information in the location where it’s being managed? If your data is being moved from province to another or even another country, how does this affect

   The questions above serve as a checklist for often forgotten elements which can be critical throughout the e-discovery process. Addressing these issues when planning and developing procedures will facilitate the process when it comes time to react.

   The post Electronically Stored Information: A Reality Check appeared first on Slaw.

   ]]> https://www.slaw.ca/2008/09/22/electronically-stored-information-a-reality-check/feed/ 3 https://www.slaw.ca/2008/07/31/principles-of-litigation-management/ https://www.slaw.ca/2008/07/31/principles-of-litigation-management/#comments Thu, 31 Jul 2008 15:25:13 +0000 http://www.slaw.ca/2008/07/31/principles-of-litigation-management/ Law firms struggling with e-discovery tend to lack leadership, not technology. Litigation clients deserve to be represented by knowledgeable litigators who can provide good strategic advice, follow well-defined practices for ensuring the admissibility of evidence, and use modern technology effectively to reduce costs and improve the quality of advocacy.

   Corporate clients expect a high level of competence especially in areas of high potential risk such as electronic discovery.

   But where to start? When we consider the complexities of ESI, the long legacy of paper-based discovery rules, and the unwillingness of some lawyers to embrace technology, how can a firm even . . . [more]

   The post Principles of Litigation Management appeared first on Slaw.

   ]]> Law firms struggling with e-discovery tend to lack leadership, not technology. Litigation clients deserve to be represented by knowledgeable litigators who can provide good strategic advice, follow well-defined practices for ensuring the admissibility of evidence, and use modern technology effectively to reduce costs and improve the quality of advocacy.

   Corporate clients expect a high level of competence especially in areas of high potential risk such as electronic discovery.

   But where to start? When we consider the complexities of ESI, the long legacy of paper-based discovery rules, and the unwillingness of some lawyers to embrace technology, how can a firm even begin to address the issues, let alone establish firm-wide best practices?

   To help firms come to grips with these challenges I have developed Ten Principles for Litigation Management. They are intended to provide a framework for change management. The framework is designed to support three basic activities within the firm, starting at the top:

   1. development of high-level litigation management policies within the firm
   2. drafting and implementation of these policies and procedures
   3. regular audits to ensure adoption

   Although every firm should be working on its own vision of litigation management, the basic principles should be consistent throughout the profession.

   1. SATISFY THE LEGAL AND BUSINESS REQUIREMENTS OF YOUR CLIENTS.

      The face of litigation is changing. Law practice economics is being affected. Specialist e-discovery law firms are now emerging. Offshore outsourcing of document review is now a reality. There are many threats — real and apparent — to the traditional practice of litigation, especially where documentary evidence is concerned. It is easy for a firm to get tied in knots when it comes to e-discovery decision-making.

      Every law firm must always remember that its future depends on its ability to provide excellent client service. The client must come first. When that commitment is reaffirmed, lawyers are better prepared to handle complex planning decisions.

   2. KEEP CLIENTS INFORMED OF THE NATURE, COSTS AND BENEFITS OF ELECTRONIC EVIDENCE.

      Clients do not enjoy paying bills without understanding why. And clients always want to know – and are entitled to know – what is happening on their case. They need to be kept informed about the risks, costs AND benefits of electronic discovery: how the process works, what rules and guidelines are in place, and how the firm handles strategic issues. In order for clients to be kept informed, however, lawyers must themselves have clear answers to these questions.

   3. COMMUNICATE CLEARLY YOUR VISION FOR THE FIRM’S APPROACH TO MANAGING LITIGATION

      All change within the organization starts with leadership vision. Managing partners and litigation practice leaders must consider the short, medium and long-term ramifications of electronic evidence and decide on a clear path to the future. This vision must be communicated clearly within the firm, to clients, and to trusted business partners.

   4. USE TECHNOLOGY EFFECTIVELY TO ENHANCE THE QUALITY OF ADVOCACY

      Firms have no trouble spending money on hardware and software, forgetting that the use of litigation technology should have two clear goals: better advocacy and reduced client costs. It’s never about the technology!

   5. PLAN EVERY CASE AND ALLOCATE SUFFICIENT RESOURCES

      Lawyers know that they are not the best planners. But e-discovery is a new game and every case requires a game plan. Planning is simply a disciplined, structured approach to completing a project successfully. It requires a few basic but critical elements: a sponsor, a manager, a budget, a time-frame, measurable objectives, regular communication, risk assessment, and sufficient resources.

   6. MAKE SURE EVERY MEMBER OF THE LITIGATION TEAM UNDERSTANDS HIS OR HER ROLE

      Today there is an unprecedented amount of confusion in law firms as to everyone’s proper role in e-discovery. IT people are assigned to administer client databases. Law clerks are instructed to open client’s Outlook email to find relevant messages. Administrative assistants are required to produce affidavits. Outside e-discovery consultants are sometimes seen as competitive threats and service bureaus can be treated like adversaries. Clarification of roles and responsibilities will not only ensure the highest level of competence and client service, but also boost valuable morale.

   7. EDUCATE, TRAIN AND SUPPORT ALL MEMBERS OF THE TEAM

      This may be a corollary to principles 5 and 6 but is so often ignored that it should stand alone. When firms are slow to offer training and support, professionals suffer increased stress. The firm is unwittingly increasing the risks of a serious error that could compromise its reputation. Training should include the basics of IT, e-discovery strategy, new rules and guidelines, and best practices for new procedures such as meet and confer, document review, and search term strategies.

   8. CO-OPERATE WITH OPPOSING COUNSEL ON PRODUCTION MATTERS

      Judges are asking you to do it, emerging standards and guidelines have incorporated it in writing, and case law supports it. On all document discovery matters including production format — having an effective meet and confer process is essential to avoid wasting client money. Document production even within the context of our adversarial system must be conducted co-operatively or it fails.

   9. ADOPT AND ADAPT INDUSTRY-STANDARD PRODUCTION PROTOCOLS FOR YOUR USE

      Lawyers are so good at using precedents for everything — except litigation document management. Every case seems to be reinvented. Now that the Canadian Judicial Council and some superior courts have shown leadership in establishing protocols for the exchange of documents in electronic format — firms should be establishing their own customized version and using it on every case.

   10. DOCUMENT AND FOLLOW BEST PRACTICES FOR HANDLING ORIGINAL CLIENT ESI

       One of the pitfalls of e-discovery is that most firms are receiving client data not knowing where it came from or how it was collected. This is not only a serious issue in terms of the completeness of the affidavit, but is also a serious risk to the ultimate admissibility of evidence as a business record.

   The post Principles of Litigation Management appeared first on Slaw.

   ]]> https://www.slaw.ca/2008/07/31/principles-of-litigation-management/feed/ 2 https://www.slaw.ca/2008/07/16/ediscovery%e2%80%99s-greatest-challenge-to-lawyers/ https://www.slaw.ca/2008/07/16/ediscovery%e2%80%99s-greatest-challenge-to-lawyers/#comments Wed, 16 Jul 2008 10:17:01 +0000 http://www.slaw.ca/2008/07/16/ediscovery%e2%80%99s-greatest-challenge-to-lawyers/

   There is little doubt that eDiscovery presents a challenge to lawyers.

   Identifying exactly what kind of a challenge it is has proven to be a little harder to define. Some would consider the sheer volume of ESI to be the greatest challenge. Others would say it’s the impenetrable technical jargon that presents the biggest hurdle to lawyers. Or perhaps it’s the fragility/persistence paradox that has most lawyers scrambling to catch up.

   You can read any number of blogs, articles and white papers that present different aspects of the complexities of eDiscovery as being the single greatest challenge (generally the one . . . [more]

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   ]]>

   There is little doubt that eDiscovery presents a challenge to lawyers.

   Identifying exactly what kind of a challenge it is has proven to be a little harder to define. Some would consider the sheer volume of ESI to be the greatest challenge. Others would say it’s the impenetrable technical jargon that presents the biggest hurdle to lawyers. Or perhaps it’s the fragility/persistence paradox that has most lawyers scrambling to catch up.

   You can read any number of blogs, articles and white papers that present different aspects of the complexities of eDiscovery as being the single greatest challenge (generally the one that the writer purports their product or service will solve). I’m going to present one more for your consideration: the need to be proactive.

   Litigators are not known for being proactive. The litigation process as a whole is traditionally one that involves reaction. (A nice overview of the reactive litigator can be found here). Especially for litigators working on the defense side, the traditional approach has been one of wait and see, delay, and only take action when opposing counsel pushes hard.

   Reactive litigating is not the way to handle eDiscovery.

   As any eDiscovery 101 seminar will tell you, ESI requires early action. You can’t sit around waiting for opposing counsel to make a request for additional production before reluctantly spending the extra money to preserve those additional records. As is likely clear to most reading this blog, those unpreserved records have quite possibly gone the way of the dodo, or are at least going to blow your client’s budget for the discovery phase of the litigation thanks to those expensive-to-restore backup tapes.

   Paper documents that were relevant to a litigation at least had the decency to be located in only a few places. Once you’d delved into the Records Warehouse, or ordered up the archived boxes from storage, and got your client to copy every bit of paper in their (sometimes) clearly labeled files; you could largely rest assured that you had taken every reasonable step to preserve the relevant documents.

   ESI, as we all know, is a little different. Dozens of types of data storage medium exist, and most of the data does not come in neatly labeled files, folders and boxes, but as unstructured data mixed in with email invites to hockey games, personal documents, relevant documents saved into the wrong folder, proprietary databases which contain data that is largely irrelevant (and sensitive to boot!) . . . and this is just on the corporate network. We haven’t even got to the PST’s that people copied over onto USB thumb drives, or those old floppies sitting in someone’s secretary’s desk with the illegible labels.

   With ESI, volume itself is not the issue. Litigators have had to deal with large volumes of paper in some litigation matters for years, which (thanks to paper’s format) is not easily managed without actually reading every single one of the documents; at least in part. ESI may be dramatically more voluminous, but there are ever-more effective tools to help you locate your needles in the ever-growing haystack. (See The Sedona Conference’s paper on the subject).

   And new technology itself is not the issue. Lawyers have taken to their PDA’s and Blackberries readily enough. Most lawyers are not completely technophobic, and some law schools recognize the need to train lawyers in legal-specific technology as well as the more traditional lawyering skills.

   Nor is it just about the jargon. After all, law is full of jargon too and almost anyone can grasp the basic eDiscovery jargon after a day at an eDiscovery conference or a quick perusal of The Sedona Conference’s glossary.

   What is lacking is a general understanding that to properly handle an eDiscovery case requires planning. Not just a broad game plan, or a roadmap, or an initial case assessment, but really detailed planning. (See, for example, Principle Two of the Sedona Canada Guidelines) This means being proactive. It means thinking of all the what-ifs and then planning for them. Up-front. Before opposing counsel thinks of them and starts asking you about them.

   Planning is boring. For a generation of litigators that have learned to thrive on working through the night to deal with the latest crisis (the kudos assigned to those lawyers and staff that do so is sufficient proof of this, I think), it is a deadly dull idea. Besides, isn’t all that nitty-gritty detail stuff what law clerks are for?

   The truth is, however, that the stakes are somewhat higher with ESI. Volume of data, complexity of data storage systems, fragility and persistence of ESI all means that a simple, one-size-fits-all plan is no longer sufficient. Failure to tailor the eDiscovery plan to the specifics of the litigation will result in significantly and unnecessary higher costs (and much higher risks) for your client. The combination of higher costs and higher risks means that lawyers must involve themselves in the “nitty-gritty” of planning for eDiscovery.

   I am an advocate of using project management techniques for planning and managing eDiscovery cases. (Some of my former colleagues may roll their eyes at this point). Not because project management in and of itself is a magical panacea, but because it can provide a framework to guide you through each step.

   Project management is not only a way of ensuring that everything on the eDiscovery checklist is taken care of, but also formalizes who needs to communicate what, to whom, and when; communication being the basis of effective teamwork. Just having someone on the team to stay on top of and manage all the little details; whether their title is “Project Manager”, “Partner”, or “Litigation Support Coordinator”; ensures that the right information is communicated to the right person at the right time.

   A project manager acts as a clearing-house for all information that needs to be passed around the team in order to both design an appropriate eDiscovery plan, and to enact that eDiscovery plan. It’s all too easy with the complexities and hidden stumbling blocks in any eDiscovery project to miss something due to miscommunication, lack of planning, lack of foresight or simple forgetfulness. Having one person to stay on top of everyone’s to-do lists (and to bug them about it) and to keep moving the process along even when other crises focus everyone’s attention elsewhere is essential.

   A trained project manager understands that the role is not only one of facilitating communication and nagging people, but also of thinking up “what-if” scenarios, and then planning for them. It is really about managing risk through planning. What lawyer (or client, for that matter) doesn’t like reducing risk?

   I am not alone in thinking that project management, as a formalized framework for eDiscovery litigation, can help get lawyers out of the reactive mode and into the proactive mode. Baker Robbins, a consulting firm with extensive experience in managing large eDiscovery matters, gave a two day seminar at Borden Ladner Gervais, LLP’s Toronto office in 2007 that was attended by law clerks and litigation support staff from several of the larger law firms in Toronto. Of the thirty or so attendees, there were, I believe, only two or three lawyers in attendance. Pity.

   I believe that as in-house counsel learn the value of modern business tools and methods designed to increase efficiency and effectiveness; such as project management, knowledge management, business intelligence, and so on; they will increasingly demand use of those same tools and methods by their favoured outside counsel. After all law firms are businesses too, and should expect to operate by the same rules as any other business.

   The smart litigator will get a handle on project management now; not just because the client expects it, but because the smart litigator knows this is the way to offer better value than the competition.

   

   

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   ]]> https://www.slaw.ca/2008/07/16/ediscovery%e2%80%99s-greatest-challenge-to-lawyers/feed/ 7 https://www.slaw.ca/2008/05/15/limitless-esi-access-to-justice-denied/ https://www.slaw.ca/2008/05/15/limitless-esi-access-to-justice-denied/#comments Thu, 15 May 2008 14:00:08 +0000 http://www.slaw.ca/2008/05/15/limitless-esi-access-to-justice-denied/ According to a recent article in The Economist, the advent of e-discovery may be the single most significant change to the legal system in the last half century. This is principally due to the huge volumes of material that can be involved and the sometimes staggering cost of processing it. It has been aptly put by Ken Withers, Director of Judicial Education and Content for The Sedona Conference,

   More money is probably spent litigating electronic discovery problems than in litigating class actions…this is part of potentially every case in the 21st century

   Approximately 60 billion emails are created and . . . [more]

   The post Limitless ESI — Access to Justice Denied appeared first on Slaw.

   ]]> According to a recent article in The Economist, the advent of e-discovery may be the single most significant change to the legal system in the last half century. This is principally due to the huge volumes of material that can be involved and the sometimes staggering cost of processing it. It has been aptly put by Ken Withers, Director of Judicial Education and Content for The Sedona Conference,

   More money is probably spent litigating electronic discovery problems than in litigating class actions…this is part of potentially every case in the 21st century

   Approximately 60 billion emails are created and sent every day and over 99% of all documents are created and stored electronically.[PDF] According to a Chicago law firm quoted in the Economist article referred to above, restoring email can cost roughly US$2.00 per message, including the cost of lawyers needed to review the documents. An in-house lawyer for Q-West, a telecom firm, also acknowledges that his firm spends at least twenty-five (25) percent more on legal fees relating to discoveries then is did two (2) years ago. An article which appeared in the Chicago Tribune three years ago reported that Exxon Mobile generates 121,000 back-up tapes per month, which it routinely recycles according to its records retention policies. The company claimed that if a judge ordered it to stop recycling tapes to preserve data, the additional cost to purchase extra tapes would be $1.9 million per month.

   The scope of the duty to preserve, and breadth of the type of electronically-stored information subject to the preservation obligation is also not always readily apparent. By way of illustration, on May 29, 2007, the U.S. District Court for the Central District of California held in Columbia Pictures v. Justin Bunnell [TorrentSpy] that data temporarily stored in a computer’s random access memory (RAM) was a relevant document that must be preserved and produced in litigation. In this regard, the U.S. justice system has adopted a simple rule when discussing the obligation of organizations to preserve:

   … the more sophisticated the information technology in which a business invests, the greater its digital information preservation obligations. Additionally, the more ways in which a business seeks to share information and enable access to information, the broader its preservation obligations.

   Litigation counsel and their clients are now arguably put on notice that data in RAM that can be modified up to several billion times per second should be considered a potentially relevant document that may need to be preserved as part of a litigation hold! The literal explosion in the amount of electronically stored information which is produced today and the increasing use of more complex electronic document and communication technologies (such as internal blogs, collaborative shares, internet and voice over internet protocol (VOIP)) only serve to magnify the issue.

   Inextricably linked to the preservation obligations plaguing counsel and litigants are the production disputes that provide much fodder for our judges and courts. The courts in Canada have denied onerous and abusive requests for production when attempting to balance the litigator’s mindset to leave no stone unturned and to beat the proverbial opponent to death through endless production demands against today’s reality of apparently limitless ESI. Take, for example, the case where the court refused to order the production of reports which could verify from which IP address certain on-line bets were placed9 and the case where the corporate defendant was being asked to search its entire computer system for an e-mail relating to “matters at issue in the litigation”10. In both cases the court found the requests to be unduly burdensome and oppressive. Principle 2 of The Sedona Canada Principles,11 sometime referred to as the Proportionality Rule, is a reaction to the delays and costs impeding access to justice.

   In a speech to the Canadian Bar Association in August 2007, Justice Beverly McLachlin declared access to justice “a basic right” for Canadians, like education or health care. The justice system risks losing the confidence of the public if access is beyond the reach of average Canadians.12 The new reality of the digital world leads to the obvious concern that individual litigants will seldom have the means or resources to tackle the e-discovery behemoth, particularly if they are taking on the proverbial corporate giant.

   Unfortunately, the access to justice problem is magnified in the E-discovery world – can proportionality be achieved in a world where we have grown increasingly dependent on our blackberries, Facebook and MySpace interchanges—Is the courtroom a stage where only the rich can play?

   The post Limitless ESI — Access to Justice Denied appeared first on Slaw.

   ]]> https://www.slaw.ca/2008/05/15/limitless-esi-access-to-justice-denied/feed/ 1 https://www.slaw.ca/2008/03/24/can-it-really-help-business/ Mon, 24 Mar 2008 15:12:23 +0000 http://www.slaw.ca/2008/03/24/can-it-really-help-business/ For many of us, E-Discovery has become a thorn in our side as we attempt to ensure that our organizations are able to be compliant with the court’s demands – particularly when dealing with the US Courts. Perhaps it’s time to look at some of the benefits of an effective e-discovery capability within an organization.

   Of course the first value that is often commented on is related to Records Management and the ability to facilitate and strengthen the Records Management goals, thereby leading to a connection with Risk Management and the Chief Risk Officer’s portfolio. This generally is successful through . . . [more]

   The post Can It Really Help Business? appeared first on Slaw.

   ]]> For many of us, E-Discovery has become a thorn in our side as we attempt to ensure that our organizations are able to be compliant with the court’s demands – particularly when dealing with the US Courts. Perhaps it’s time to look at some of the benefits of an effective e-discovery capability within an organization.

   Of course the first value that is often commented on is related to Records Management and the ability to facilitate and strengthen the Records Management goals, thereby leading to a connection with Risk Management and the Chief Risk Officer’s portfolio. This generally is successful through the idea of “If you know what you’ve got and you know what you must keep, then you know what you can get rid of!” Records management initiatives that are facilitated by an effective e-discovery competency (including clearly being able to identify what information must be preserved for e-discovery) have shown to be able to significantly reduce operating expenses related to storage and recovery. To do this effectively requires three policies –

   Retention Policy – defining what records must be kept, where and how they are to be kept and for what interval of time they are to be kept. (Of course the discussion of records versus documents is another topic altogether…)
   Legal Hold Policy – defining the means by which records and documents subject to a Legal Hold are to be preserved and to be prevented from being destroyed.
   Destruction Policy – defining the protocols for how records are to be destroyed once they reach the end of their life cycle.

   The second potential area of value for an organization is through the increased interaction, communication and dialogue between Legal, IT and business units, thereby leading to a connection with Operations Management and the Chief Operations Officer’s portfolio. Typically, when launching either responding to an e-discovery demand or an e-discovery project, the first problem to overcome is the weak or non-existent relationship between Legal and IT. E-discovery requires a rapid development of the relationship and knowledge of the underlying systems, data stores, technology policies etc. The other critical aspect here is the ability to identify and develop an individual or individuals that are able to perform the role of deposition witnesses (in the US a 30(b)(6) witness) to provide detailed knowledge about the organization’s technology infrastructure, systems, and policies.

   The third developing area of potential value is the ability for legal departments to leverage the data and information that is gathered as part of the e-discovery process and use it as part of the budget forecasting process, thereby leading to a connection with Financial Management and the Chief Financial Officer’s portfolio. It’s actually fairly straightforward –

   • Track –
     • The number of matters
     • The stages of matters (ie. requires holds, requires collections, requires production)
     • The volume of data collected and the cost to collect the data on a per unit (ie. per mb) basis
   • Determine –
     • A weighted probability based on stage of the matter (ie. matters that require holds, matters that require collections, matters that require production)
   • Calculate –
     • Using historical data to project future costs

   This approach, in it’s simplest form, can provide litigation managers the ability to leverage existing data to more effectively project future costs. Also, by increasing the number of variables the model can be used to project across a number of scenarios, matter types and business lines.

   The potential organizational value of e-discovery remains to be seen in most organizations. Today, it is generally seen as legal-centric, however, by connecting to the Chief Risk Officer, Chief Operations Officer and the Chief Financial Officer, e-discovery can truly become an organizational value multiplier.

   The post Can It Really Help Business? appeared first on Slaw.

   ]]> https://www.slaw.ca/2008/01/19/ephemeral-data/ Sat, 19 Jan 2008 23:02:45 +0000 http://www.slaw.ca/2008/01/19/ephemeral-data/ One of the most controversial electronic discovery cases in the U.S. in 2007 involved the preservation of ephemeral, or transient, electronically stored information (“ESI”) stored in Random Access Memory (“RAM”). In Columbia Pictures, Inc. v. Bunnell [PDF], 2007 WL 2702062 (C.D.Cal. Aug. 24, 2007), the court addressed plaintiffs’ motion for an order directing the preservation of information in the RAM of defendants’ computers. The court rejected defendants’ argument that ESI included only information stored for later retrieval. Defendants also argued that ESI could not include information held in RAM because the period of storage (less than six hours) was too . . . [more]

   The post Ephemeral Data appeared first on Slaw.

   ]]> One of the most controversial electronic discovery cases in the U.S. in 2007 involved the preservation of ephemeral, or transient, electronically stored information (“ESI”) stored in Random Access Memory (“RAM”). In Columbia Pictures, Inc. v. Bunnell [PDF], 2007 WL 2702062 (C.D.Cal. Aug. 24, 2007), the court addressed plaintiffs’ motion for an order directing the preservation of information in the RAM of defendants’ computers. The court rejected defendants’ argument that ESI included only information stored for later retrieval. Defendants also argued that ESI could not include information held in RAM because the period of storage (less than six hours) was too temporary. The court found defendants’ “interpretation of ‘stored’ unsupported by the text of the Rule, the accompanying commentary of its drafters, or Ninth Circuit precedent involving RAM,” and specifically found that “Rule 34 requires no greater degree of permanency from a medium than that which makes obtaining the data possible.”

   Although the decision in Columbia Pictures is of no precedential import outside of the court in which it was decided, and presents an arguably unique factual situation, it was the first clear articulation by a court that neither the lack of intent to later retrieve ESI nor the short duration of its existence are a bar to requiring preservation. This position is consistent with Principle 8 of The Sedona Principles for Electronic Document Production [PDF] (“The Sedona Principles”), which provides that “[t]he primary source of electronically stored information for production should be active data and information.”

   Practitioners should take note of the increasing range of ESI that courts may find subject to preservation requirements, and the potential argument that the decision in Columbia Pictures puts litigants on notice that otherwise ephemeral data should be preserved.

   The post Ephemeral Data appeared first on Slaw.

   ]]> https://www.slaw.ca/2007/11/04/litigation-trends-survey-results/ https://www.slaw.ca/2007/11/04/litigation-trends-survey-results/#comments Sun, 04 Nov 2007 19:43:02 +0000 http://www.slaw.ca/2007/11/04/litigation-trends-survey-results/ My firm, Fulbright & Jaworski, has released the findings from our Fourth Annual Litigation Trends Survey. It’s the largest survey of its kind, and this year over 300 general counsel or heads of litigation responded to our questions. I am a principal architect of the survey and always insert a host of questions on e-discovery issues. This year’s findings are quite interesting.

   Jury’s Still Out on the New U.S. Rules. In-house counsel say they are not yet seeing much benefit from the amendments to the U.S. Federal Rules of Civil Procedure that went into effect at the end . . . [more]

   The post Litigation Trends Survey Results appeared first on Slaw.

   ]]> My firm, Fulbright & Jaworski, has released the findings from our Fourth Annual Litigation Trends Survey. It’s the largest survey of its kind, and this year over 300 general counsel or heads of litigation responded to our questions. I am a principal architect of the survey and always insert a host of questions on e-discovery issues. This year’s findings are quite interesting.

   Jury’s Still Out on the New U.S. Rules. In-house counsel say they are not yet seeing much benefit from the amendments to the U.S. Federal Rules of Civil Procedure that went into effect at the end of 2006. Although the rules were ostensibly designed to help opposing parties establish protocols for disclosure and discovery of electronic information, more than half of the Fulbright survey respondents detected no change in how their companies are handling federal litigation; 18% felt the e-discovery guidelines have eased their litigation issues, while 27% said the rules have actually made their litigation lives more difficult. Most of the ten reporting industry segments likewise claimed the new rules have created more litigation hardships than gains. More than 70% of counsel reported that e-discovery issues “rarely” or “never” figured in their litigation matters. Meanwhile, 6% said e-discovery is a frequent component of motions, hearings or rulings in which they’re involved. Thirteen percent of billion-dollar firms said e-discovery plays a frequent role in their matters.

   High Cost of Preproduction Privilege Review. So much of the cost of American litigation these days is driven by the page-by-page privilege review that those hapless contract lawyers are doing that I decided to survey our respondents on the issue. More than a quarter estimated that at least one-fifth of their annual litigation expense went toward a pre-production privilege review, including 16% for whom it represented at least 30% of litigation spending. Even for smaller companies, 30% said the pre-production process accounted for a fifth or more of overall litigation costs; for billion-dollar firms, it was 33% of annual spending — vivid reminders that companies might do well to revisit best practices for this critical task. One of our $1 billion+ respondents stated it had spent over $3 million on preproduction privilege review in a single matter!

   Loss of the Privilege. Some companies have already been stung by not having a strong handle on their e-discovery methods: 17% reported that they had lost the attorney-client privilege owing to their inadvertent production of electronically stored information (ESI); among U.K. companies, the quotient was an attention-grabbing 40%. U.S. financial and retail firms both admitted a near-40% rate of lost privilege owing to errant ESI practices, suggesting there is much room for improvement in the way many businesses execute retrieval and review of archival electronic records.

   Backup Tape Rotation Periods Are Being Reduced. The average business said it retains backup tapes for just two to three months. Thirty percent of the over $1 billion companies retain backup tapes for 30 days or less. 36% keep them for 2-3 months only. This is consistent with our advice, i.e., if your back-up tapes are truly for disaster recovery use only, why keep them for longer than a few weeks? Only 14% of our respondents are backing up for one year or longer; and not a single under $100 million company responding to the survey maintains a back-up threshold of one year or longer.

   Litigation Hold Policies. In one key aspect of records retention — responding to a preservation order or so-called litigation hold — businesses have taken heed: 89% of in-house counsel said their companies now have litigation hold procedures in place. For billion-dollar plus companies, the number reaches 98% of respondents. It is noteworthy also that 81% of U.S. companies said they had reviewed their retention policies over the previous 12 months.

   Capturing Data in the Workplace – Instant Messages. As instant messaging gains widespread use at many companies — 53% of in-house counsel said employees use IM, while the rate among billion-dollar firms was 70% — businesses have the added burden of capturing and retaining those running online conversations in the event they are needed in a litigation hold instruction. The portion of companies logging employee IMs is considerable — 28% said they retain the messages as routine policy or in certain cases; for billion-dollar firms, the share was 40%. While many companies may archive IMs for only several weeks or a month, 43% keep them for two months or longer, including 15% holding on for at least a year; among large companies, 25% maintain IMs for one year. One-third of all companies permit employees to attach documents to instant messaging — which can take on added significance in light of the extended holding periods in place at some businesses.

   Capturing Data in the Workplace – Voicemails. Forty percent of in-house counsel said they have a retention policy for employee voice messages. As with IM, much of the phone chatter is saved for a month or less, but 31% of companies store their voicemail for at least two months, including 9% with a one-year or longer hold policy. The retention protocols become even more complex considering that 37% of companies said their phone systems allow voice messages to be forwarded to others via e-mail, creating a potentially huge web of vocal documentation.

   Crossing Personal and Business Boundaries. Further complicating e-discovery and document retention practices is the line that employees regularly cross between their business and personal discourse. Thirty-seven percent of the Fulbright survey respondents said they allow employees to access outside e-mail accounts using company-issued computers; for billion-dollar companies, the allowance rate was 44%; and for tech shops, it rose to 61%. Meanwhile, 74% of companies let employees access the corporate network from their home computers. The high degree of co-mingled communication could lead to unexpected challenges in a litigation context.

   Focus on Privacy. Lastly, we were interested to know how much our respondents are concerned about privacy. We found that 39% of our respondents have a full time privacy officer but 60% said they have no current plans to hire one. As might be expected, health care providers reported the highest use of privacy officers (71%), followed by retailers (61%) and financial services firms (59%). Technology firms are not as quick to focus on this factor: only 35% have an in-place privacy officer.

   For more information on the Survey, please go here.
   For information on Fulbright’s e-discovery practice, please go here.

   The post Litigation Trends Survey Results appeared first on Slaw.

   ]]> https://www.slaw.ca/2007/11/04/litigation-trends-survey-results/feed/ 1 https://www.slaw.ca/2007/09/05/someone-else%e2%80%99s-e-discovery-nightmare/ Wed, 05 Sep 2007 17:51:12 +0000 http://www.slaw.ca/2007/09/05/someone-else%e2%80%99s-e-discovery-nightmare/ (Ogilvy Renault LLP)

   As a commercial litigator, I have dealt with cases having large volumes of documentary production and e-discovery. But I decided that I would share the thoughts of some individuals currently in the trenches instead of blogging about a personal e-discovery experience or trying to come up with any words of wisdom (which we all know, in the e-discovery realm, means something that I learned from my own mistake or a corporation’s well-publicized mistake following a U.S. judgment).

   An e-discovery project is underway in my office that I affectionately think of as “someone else’s nightmare”. The case involves . . . [more]

   The post Someone Else’s E-Discovery Nightmare appeared first on Slaw.

   ]]> (Ogilvy Renault LLP)

   As a commercial litigator, I have dealt with cases having large volumes of documentary production and e-discovery. But I decided that I would share the thoughts of some individuals currently in the trenches instead of blogging about a personal e-discovery experience or trying to come up with any words of wisdom (which we all know, in the e-discovery realm, means something that I learned from my own mistake or a corporation’s well-publicized mistake following a U.S. judgment).

   An e-discovery project is underway in my office that I affectionately think of as “someone else’s nightmare”. The case involves both U.S. and Canadian regulatory and criminal investigations and, as these things tend to go, shareholder class action litigation. Of course, all of these various players want all of the company’s documents, and no less than all, and they want them immediately. Once in awhile, my colleagues on the file consult with me about specific e-discovery issues which arise – I give my two cents, and I then bow out and let them deal with my two cents in the context of a morass that I can, happily, ignore.

   Here are some questions to and answers from my colleagues living the nightmare:

   Q1. How have you managed the time demands placed upon you by powerful authorities like the U.S. Department of Justice?

   A1. I have been honest. I recently advised that I could deliver the data immediately as requested, but that might bring down the entire Department of Justice with the viruses that are currently infecting the data, or they could wait a few days while we dewormed the data. They agreed to wait a few days.

   Q2. Didn’t your forensic services provider deworm the data for you?

   A2. The data was dewormed several times before we received it: by the client, by our forensic service provider and our data processor, and we also dewormed it. However, that did not prevent the reappearance in the data set of the famous 2001 “Anna Kournikova” and “I love you” viruses when we uploaded the data to our servers! Déjà vu all over again.

   Q3. What is the one thing you wish you were able to instruct the forensic services provider at the beginning of the engagement?

   A3. Do NOT strip attachments from emails. Privilege review is a dreadful when the links with attachments are broken. Unfortunately, we had no input into the early processing of the data, and a forensic application was applied which stripped attachments from emails and assigned random unique identifying numbers to each record different than the hash values contained within the original .pst set. It was quite a headache reassembling this stuff.

   Q4. With regard to privilege, is there anything that corporate counsel could do on an ongoing basis with the foresight that their e-mail communications could be subject to e-discovery down the road?

   A4. When corporate counsel and transactional lawyers are in the throes of a transaction, they forward sensitive information via e-mails to various parties, such as auditors and bankers, without regard to privilege issues. Much of the time, I will see draft documents prepared by counsel for review by clients that are then forwarded to underwriters, bankers, auditors and other parties. This makes sense within the context of the transaction world. Although the effect of these transmissions is to get the deal done effectively, it creates the risk of waiving privilege in legal advice that may be contained within the document and associated e-mails – or opening up this argument to regulators and other authorities or plaintiffs in class proceedings so they can try to get access to these e-mails and draft documents. I do see examples of privilege loss in my e-discovery reviews, particularly since the transmission of forwarded emails beyond a tight group of people is so easy.

   Q5. How do you manage the process in a large e-discovery project?

   A5. I wish that all parties with an interest in the electronic data could develop a protocol for managing, processing and reviewing the data before we begin a project. However, there’s not yet any process or framework in place to do this every time, particularly when regulators and law enforcement personnel are involved or become involved at different times. I have had regulators or law enforcement personnel request delivery of the information in a different format and according to different protocols than is being developed and would be expected in the civil litigation context. Most often, this is because regulators or law enforcement personnel have access to and use different computer systems and applications than civil litigators. And, these systems and applications often cannot talk to each other.

   I have found that different recipients of the data can take different positions about culling data by means of deduplication processes or culling for spam or other material unlikely to be relevant. Different recipients have also had different priorities about what data should be reviewed first. This has created quite a traffic-control problem for us here.

   When reviewing and processing electronic data that will be transmitted to different jurisdictions, the different laws relating to privilege and relevance makes review and coding of the information tricky, particularly when it comes to privilege calls. The pressure is on when failing to separately mark a document that would not be considered privileged in Canada but could lead to subject matter waiver over an entire privileged data set in the United States!

   Q6. How do you manage the volume of data?

   A6. As best we can, and by segmentation, segmentation and segmentation. On one large project, we have divided up the data into a couple dozen smaller databases by custodian and by year, but even so, these databases can run into the tens of thousands of electronic documents. One project can occupy a lot of server space.
   We often have several people working in a database at once to get some traction in the review process. However, the major document management programs (like Summation and Concordance) are “flat”, and too many coders working in one database at a time can crash, slow-down or disable the system. We recently ran into a situation where the volume of data being processed crashed our server, without warning. Fortunately, we didn’t lose too much data, but the crash did set us back a few hours. We also have a law clerk who is packing and blazing our Summation databases daily – she’d say it was on a full-time basis!

   Q7. How do you achieve consistency in your coding?

   A7. We have a lot of meetings with all the coders to talk about coding and to bring issues forward on a daily basis. Did I mention we have a lot of meetings? We also do a lot of keyword searching across data sets to try to ensure coding consistency.

   Q8. Are there any spooky things about this project that keep you up at night?

   A8. You mean apart from scheduling how we process too much data in a too short period of time, worms and viruses, crashing servers and the risk of inconsistent coding leading to loss or waiver of privilege across jurisdictions? Tricky legal questions like how to code system-generated virus neutralization messages, e-mail read receipts, and e-mail delivery status notices within a privilege review. I’m not kidding! The Wigmore criteria for identifying the existence of a privilege were not crafted with these routine electronic messages in mind. We’ve had some really great legal debates about whether a read receipt generated by an e-mail sent to a lawyer actually gives rise to an appropriate claim of privilege.

   Now you, like me, can be glad that this is someone else’s nightmare…and learn from it.

   The post Someone Else’s E-Discovery Nightmare appeared first on Slaw.

   ]]>