Wortzman Nickle has been actively working on records management policies and litigation readiness protocols. In our experience, privacy issues and the treatment of personal information are frequently raised as concerns. There are many reasons for a company to appropriately collect and retain an individual’s personal information. However, once the information is collected, certain obligations arise under applicable privacy legislation.
The recent economic recession has resulted in a rise in privacy complaints, largely because companies are more frequently collecting personal information and they are struggling with the manner in which they handle it.
Several provinces are reporting a significant increase in employment related privacy complaints. In particular, it appears that employers are asking for personal information such as SIN numbers and other information to enable them to perform credit checks on prospective employees even prior to an offer of employment is made. In some cases, the employer is not even advising the employee that a credit check will be completed. This collection results in a number of problems: a lack of consent for the collection of the personal information, a failure to advise that a credit check will be performed, the inability of the company to justify why a credit check was required at that stage, and potential problems relating to the retention and disposal of the personal information.
The best way to deal with these issues is with defensible policies and protocols.
Is your business governed by PIPEDA? Is your policy falling short?
The Personal Information Protection Electronic Documents Act (“PIPEDA”) provides that companies must obtain appropriate consents; collect only what personal information they require for their business purposes; safeguard the information appropriately; and, dispose of the information as soon as the purpose for which it was collected is fulfilled.
To ensure your records management program is consistent and doesn’t run afoul of privacy laws, review your program as a whole. Ensure that your retention policy integrates well with your privacy policies and all other litigation readiness protocols. If your policies do not work well together, it’s time for a rewrite.
The issue of cost allocation of electronic information in the context of the discovery process has not been resolved in Canada. As a general rule, the interim costs of preservation, retrieval, review and production of electronic records is borne by the party producing them. Similarly, the opposing party is required to incur the cost of making a copy for its own use, just as it had previously with paper documents. There has been a hesitancy on the part of the Canadian judiciary to make other cost-shifting orders as costs in Canada are generally awarded at the final stage of litigation.
Then comes e-discovery which has given rise to a radical expansion in the quantity and type of disclosure. Sedona Canada Principle 12 clearly provides for cost sharing or shifting before the final stage of litigation either by agreement of the parties or by court order.
Master Brott of the Ontario Superior Court has recently made such an interim costs order. In Borst v. Zilli, [2009]O.J. No. 4115, the parties agreed to retain an independent computer consultant (“ICC”) to copy the defendants’ computer data. They also agreed to retain an independent solicitor (“ISS”) to review the documentation for relevancy and privilege before it be produced to the plaintiffs. The Court held that the costs of the ICC should be borne by the plaintiffs in this case and that the costs of the ISS should be shared equally between the parties.
Litigants beware – Canadian courts are starting to make interim cost-shifting awards with respect to accessible electronic records! If you are concerned about the costs of your e-discovery litigation and how to best manage e-discovery in Canada, contact Wortzman Nickle.
New e-discovery products are coming to market on almost a weekly basis. They serve different functions and fit into different parts of the EDRM model (notionally being: preservation, identification, collection, processing/culling, review, and production). In researching these options, we are learning that the terminology used by forensic companies is often as diverse as the products they are selling.
In particular, the term “review” is causing some confusion. In the legal context, “review” means the fifth stage in the EDRM model referencing the “lawyer review”. This is the phase after collection and processing/culling when lawyers review and code the records for relevance, privilege and to issues codes. At the review phase, we look for a robust review platform that allows customized coding fields and the integration of near de-duplication and/or concept clustering software. These features save our clients significant time and money as they avoid a linear review.
However, in the forensic context, “review” often means the ability to view records (images or in native format) during the early case assessment or processing/culling phases.
Does this potential conflict in e-terminology matter? Yes. Suddenly, a solution billed as “end to end” is actually an early case assessment or processing tool – one which will require an export of data to an appropriate (but different) review platform down the road. This can mean an increase in time and cost for the litigant company – the one that believed it had purchased a single “end to end” e-discovery solution.
The lesson learned is this – ask lots of questions and clarify the terminology at every stage. Alternatively, call Wortzman Nickle and we’ll help you with the e-translation.
Susan Nickle and I have spent a busy week meeting with vendors and assessing litigation support tools on behalf of several clients. The new built-in features to several of these tools allow organizations and law firms to conduct their own early case assessment in-house. This became the focus of many of the meetings we had this week. This really ties into Nickle’s post last week with respect to in-sourcing and how much of the e-discovery process should be conducted in-house by large Canadian organizations. As the tools are developing so rapidly, we see many ways for our clients to put themselves in a position to conduct early case assessment efficiently and in a very cost effective manner.
Despite an initial collection of hundreds of thousands of e-mails for review, early case assessment tools have allowed us to manipulate our searches and the data to cull the collections down to very manageable review sizes. Coupling that with the review tools that allow for clustering, threading, boolean and other types of searches, we are identifying manageable review sets of data that can be triaged in a matter of days. Trial counsels are then able conduct a serious assessment of their case.
Susan and I continue the quest to find the best tools to allow our clients to manage their e-discovery reviews, both in conjunction with external support and in-house. The reaction from our clients has been overwhelmingly positive as they see the results of the early case assessment work
It used to be that when lawyers turned their minds to the use of social media (Facebook, MySpace, Twitter, etc.) it was at the request of a client looking for help with a corporate policy. Times have changed. Now lawyers themselves are turning to social media due to its extraordinary power as a marketing tool.
Not convinced?
This week, in an effort to teach lawyers how to effectively utilize this “emerging new media” the Canadian Bar Association hosted a webinar called “Social Media for Lawyers”.
Consider the following:
- the emergence of law-targeted sites such as Legal OnRamp, JDSupra, MH Connected, and others;
- the decision of Ontario’s Chief Justice to allow live blogging and “twittering” from the courtroom of the Ottawa mayor’s bribery trial;
- court decisions which take note of, or actually rely on, evidence from Facebook;
- numerous law schools (Harvard, U of T) and Canadian law firms (the “seven sisters” are represented) are engaged in the use of social media, including Twitter and Facebook;
- the prevalence of large Canadian corporations on various social media sites – business development anyone?
Still not convinced? During the webinar, the following statistics were provided:
Facebook: the #5 top global website boasts 132 million unique visitors per month and 300 million active users
Twitter: the fastest growing social network
LinkedIn: 43 million strongly business-oriented users
With targeted, consistent, appropriate use (lawyers must ensure they are compliant with their Rules of Professional Conduct), social media is an invaluable marketing tool – particularly for those practicing in a niche legal market (like Wortzman Nickle!).
Since e-discovery is clearly here to stay, should its processes be handled internally or outsourced, or a combination of the two?
Many of Wortzman Nickle’s corporate clients are facing this dilemma. Finding the right answer is not simple, requiring a combination of legal and technological experience, plus top-down/bottom-up corporate initiatives.
The bottom line? Get everyone speaking the same language (not an easy task) and ask lots of questions, including the following:
1. What is the volume of litigation in the corporation – can the expense of additional technology and perhaps staff be justified?
2. What e-discovery expertise do existing in-house counsel and staff have?
3. Who is available to project manage the e-discovery processes as well as any technology purchased for in-house use?
4. Are there people in-house with an ability to stay current with legal developments and new and emerging technologies?
5. How is employee productivity going to be impacted? Legal and IT professionals, despite having e-discovery expertise, may be too busy to take on the entire process on top of regular responsibilities.
6. What e-discovery expertise does external counsel possess?
7. What technology will best work with the existing IT infrastructure?
8. Does the corporation need an “end to end” solution to manage preservation, identification, collection, processing/culling, review and production of records, or will some aspects of the process (ie. processing and/or lawyer review) be outsourced depending on the file?
9. Will the solution you are contemplating allow for valuable software add-ons when required, such as concept-clustering or near de-duplication software, which may significantly simplify and reduce the costs of the lawyer review stage?
These questions all require careful consideration.
Selecting the right technology solution is central to the decision-making process. Many of our clients are reporting that they are overwhelmed with options, receiving numerous calls per week from forensic and e-discovery vendors wanting to pitch their in-house e-discovery solutions.
How to best navigate these calls? Wortzman Nickle can assist you. We are speaking with many of these companies to better understand the strengths and limitations of the various products and where they fit into the EDRM (Electronic Discovery Reference Model). One cautionary consideration: an “end to end solution” may not be what it appears, so ensure your terminology is clear and evaluate your options carefully.
In the end, there are many solutions available. For some corporations, some aspects of the e-discovery process can be effectively managed in-house, while other processes may be better outsourced, depending on the litigation. Mostly commonly, it is a hybrid of the two that works best for most companies – providing both the stability and cost-effectiveness of in-house capabilities with the flexibility to apply new technologies as required. One size does not fit all.
I have just finished a cross-country conference tour. I started on September 16th at the Sedona Conference, Getting Ahead of the e-Discovery Curve: Strategies to Reduce Costs & Meet Judicial Expectations in Vancouver. Moving east, I then participated in the Canadian Institute: Class Actions Litigation conference on September 23rd in Toronto discussing e-discovery issues. The last part of my travels took me yet further east to Halifax on September 30th to an Insight conference, E-Discovery and E-Documents. I can now safely say that I have heard from external counsel, in-house counsel, vendors, records management and IT participants on their latest issues and concerns surrounding e-discovery in Canada.
The buzz at all three conferences seems to be “early case assessment”. While the never ending issues of preservation and proportionality were discussed, there was a tremendous focus now on costs and how to reduce the costs of e-discovery. Peg Duncan and I prepared a paper for the Sedona Conference called e-Discovery: Bringing Down the Costs which garnered much interest at the conference. I have since had several calls and questions from lawyers and in-house counsel wanting to discuss early case assessment tools.
In practice, I have recently been involved with two cases where we have very successfully used early case assessment tools to quickly identify key electronic records in massive collections of data. Although this is not the end of the e-discovery review, it has allowed counsel to inexpensively and very efficiently identify key documents for their cases. It is the inexpensive part that our clients are most interested in achieving.
Wortzman and Nickle continue to look at early case assessment tools to provide our clients with advice on the best way to assess and analyze their electronic records and their case, early in the lifespan of a matter.
Records Management, litigation readiness, policies, privacy law | admin October 29, 2009 | 
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