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A recent presentation by the Compliance, Governance and Oversight Counsel (CGOC) presented the findings of a soon to be released survey on current information governance practices. The survey revealed that, while 98% of the respondents consider defensible records disposal to be a key element of good records management, only 22% are actually able to carry out any type of records disposal. The problem cited by many is that people become “glued” to their information, and those who recognize the need to maintain proper records management (IT, legal, and records), are often left out of the picture.
The study is due to be released at the end of September, and explores the challenges associated with current leadership, ownership, and process management issues that organizations must address in order to implement effective records management. The study is published as part of a CGOC Benchmark Report which also includes models and tools to measure an organization’s progress and allow them to assess their risk. The study was conducted in collaboration with the Information Management Reference Model project of the EDRM.
Wortzman Nickle can show you how to melt the glue so that your organization can implement a workable, efficient records management practice.
A Focus on E-Trials
The Canadian Centre for Court Technology/Centre canadien de technologie judiciaire is currently hosting its inaugural Canadian Forum on Court Technology conference in Ottawa, Ontario. This two-day conference started yesterday, and is extremely well attended by lawyers, judges, and technology experts from across Canada.
Following an opening plenary session with The Honourable Madam Justice Louise Charron of the Supreme Court of Canada, the various sessions scheduled on Day One were broken into three themes: “What Has Been Done?”, “What’s Next?”, and “Savings and Technology”. I joined Master Calum MacLeod and Martin Felsky on a panel addressing “An Introduction to E-Discovery and its Impact on Trials”. Our session emphasized the cost and time savings of keeping information that is created and stored electronically in its original format, throughout the e-discovery and trial phases.
Discussions of e-trials took centre stage yesterday. While more lawyers are engaging with e-discovery, e-trials (entirely electronic trials) remain extremely rare in Canada. Panelists (judiciary and lawyers) throughout the day took the position that e-trials promote access to justice, lower costs, better lawyers and judges, and strengthen advocacy. Session participants and panelists expressed a need for the judiciary and the court system to do more to facilitate the presentation of electronic evidence at trial.
No disagreement there. However, promoting the use of technology in the courtroom has to be a top-down, bottom-up initiative. If lawyers don’t come to court prepared to do e-trials, there will be little incentive for the judiciary and court administration to ensure the facilities are in place to accommodate them.
A recent study carried out by the Pew Research Center (http://www.pewinternet.org/Reports/2010/Cell-Phones-and-American-Adults.aspx) found that texting has permeated generational boundaries. Sure, adults still don’t text as much as kids do, but the numbers are climbing.
While this is interesting on many levels, the big question in terms of e-Discovery is what the enterprise is doing to adapt. Sure, teens are several years away from entering the workforce, but the enterprise has only been tip-toeing their way around mobile management. By the time these texting teens are ready for a job, will the enterprise look any different?
The study also raises questions about how these texting trends are influencing the way companies and organizations reach out to these demographics. If teens are abandoning Facebook and don’t use Twitter, how are companies getting their attention? If more adults start texting, it could mean that it’s in place of something else, like email?
From records management to communication to web publishing, is the enterprise prepared to operate from a mobile platform? And if so, how is this mobile information going to be collected and integrated into the traditional litigation discovery environment?
Of course, texting may not even be around in ten years (it didn’t exist ten years ago). But this is exactly our point: how does the enterprise and legal community plan to keep up with evolving trends and technologies?
As fun as it is to learn about behavioural trends, it’s even more important to be ready to change course as a result. New media and technology affords users new ways to access and exchange information with others. However, it also challenges the legal community to deal with these ever evolving forms of communication, or risk standing idly by and completely missing the mobile smoking gun.
As the legal professional continues to grapple with e-discovery and all things electronic, it appears that with respect to the use of technology in the courtroom, it is one step forward, one step back.
E-trials continue to be the exception rather than the rule. Notwithstanding the emergence of e-discovery and growing efforts to collect, process, review and produce all records electronically in litigation, paper document briefs remain a too common product of the e-process.
E-trials remain rare. Requests for e-trials are commonly refused due to inadequate courtroom facilities and other practical considerations (in addition to push-back from other lawyers, some of whom are slow to join the technological e-party).
There are other problems. Shockingly, as recently as April of 2010, a lawyer was prohibited from using his laptop computer in the courtroom on the basis that it was a “recording device” and therefore violated court rules. When the lawyer explained that he was unable to proceed without his laptop, the Justice of the Peace adjourned the matter for four months.
This situation is particularly surprising in today’s climate, where lawyers are strongly encouraged to understand and utilize technology to the benefit of their clients. We often talk about the gap that exists between IT and Legal. Clearly, there is a practical gap between the “technology theory” and its practice in at least some Canadian courtrooms.
The International Legal Technology Association’s annual conference wrapped up two weeks ago and the cyberways are abuzz with comments on the various presentations. One discussion of note focused on issues facing corporate IT. The message: they have no one to talk to inside the law firms. In-house counsel speak to their internal teams. Outside counsel speak to their teams. But the people who handle the data directly don’t talk to each other. And it’s causing problems.
In his seminar on defensible e-Discovery strategies, Browning Marean of DLA Piper in San Diego refers to this as the “Geek to Geek dance” (that is with a capital G out of respect to those who talk in zeros and ones).
Although corporations are getting smarter about the way they handle their ESI, bringing more technology in house and hiring more IT to handle it, Mr. Marean noted that both lawyers and their clients need to rethink the way they communicate with each other. In particular, he said that they need to bring the data experts together to have conversations with each other.
The real hurdles that need to be overcome are not technological, they’re human. Lawyers who try to decipher and communicate complex information about data to each other often don’t appreciate the details. They either understand most, some or none of the conversation. Even in the best scenario, a lot gets lost in translation.
The Geeks need to be talking to each other directly. Moreover, these conversations need to happen at the onset of the case. The Geeks, or at least the chief Geek, should also be integrated into the broader client development strategy. Set up a lunch or a meet and greet between your Geek and your client’s Geeks so they can learn from each other in advance of the next big piece of litigation.
Wortzman Nickle can assist you in bridging the gap between legal and IT. Call us for all your Geek-speak to legalese translation needs.
Despite abounding rumours that we only hire people named Susan, Chuck Rothman has joined us…and he refuses to change his name to Susan.
A professional engineer, formerly the Director of e-Litigation Services at a major Canadian e-discovery forensic vendor, Chuck brings extraordinary technical advisory expertise to Wortzman Nickle.
As Director, e-Discovery Services at Wortzman Nickle, Chuck will provide technical and practical advice to law firms and corporations regarding the most efficient and cost-effective methods for all phases of e-discovery, from preservation through to production. Chuck will play an instrumental role in further developing our practice in the records management realm. He will complement our team of counsel that advises our clients on records management policies. Chuck will assist clients in selecting the best software solutions and protocols available to manage the classification and organization of business records.
Wortzman Nickle is Canada’s e-discovery law firm, assisting corporations and their counsel to find practical and cost-effective ways to meet their e-discovery obligations.
To contact (and congratulate!) Chuck regarding his new role, email him at crothman@wortzmannickle.com.
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Blog | admin September 27, 2010 | 
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