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Last week, the Wortzman Nickle home team travelled to Collingwood for the firm’s retreat.
This annual event gave us the opportunity to re-group, review processes and files, and team-build. Guided by a comprehensive agenda and inspired by the beautiful surroundings, our team has emerged stronger and more efficient than ever.
Key topics of interest? Efficient collection and data processing, lawyer review processes and platforms, plus project management best practices ruled the day. We know that being efficient with processes and reporting keeps files on track, on budget, and clients happy.
In the name of team-building, we took on a “strenuous/advanced” mountain hike in the rain, as well as two yoga classes. There’s nothing like sore muscles, exhaustion, and a few headstands to bring a legal team together.
Things to watch for? Wortzman Nickle’s edgy, innovative, advertising campaign, introduced this Spring and to be continued in the Fall. Some other surprises are in store for our firm…stay tuned.
When advising clients on their document collection, one of our key goals is to reduce the volume of records before the manual part of the review begins. The rationale is to reduce the collection of irrelevant data, which in turn reduces the labour intensive and costly human review of those records. While filtering by custodian, date, document type and keywords are the typical starting points, there are many new and advanced filtering methods available to us today, which are useful for organizing and reducing large and complex document collections.
Take, for instance, probability tracking. Probability tracking places a value on words based on relationships, proximities and frequency, in order to map out or create relationships with unknown data. Once the relationships between the words are identified, irrelevant data is more readily identified and culled from the collection.
Clustering tools analyze the content of documents, comparing the number of times different words appear. These tools then place the documents into a specified number of clusters. Concept learning technologies are a step up in complexity from probability tracking. It identifies related words and analyzes their relationship in a document that may not share the same words but nevertheless can be identified as having similar topics. These techniques become even more powerful when combined with thesauri, taxonomies and ontologies.
Complex tools such as these, based on mathematical probability and statistics, can be partnered with programs that present the information in a meaningful way for human examination and review. Collections of data represented in tables, trees, clusters and threads, allow us to understand the relationships of the records, thereby speeding up the review process.
For more information on probability tracking and clustering tools, contact Wortzman Nickle.
I recently had the pleasure of participating in the first international ESI Bytes program with Justice Colin Campbell, hosted by Karl Schieneman of JurInnov Inc. In “Lessons on e-Discovery in Canada”, we discussed how e-discovery is handled in Canada compared to the US, as there are clear procedural differences in our discovery process and our Rules of Civil Procedure. Justice Campbell and I agreed that many parties and their counsel in Canada are still ignoring ESI and printing email in “standard” cases. However, “non-standard” cases are more likely to address e-discovery issues. The panel agreed that while Canadian litigation practices are influenced by US litigation, Canada generally lags behind the US due largely to our cost regime (loser pays) and contingency fees (which are now becoming more prevalent). As Canada watched the US federal rule changes that occurred in 2006, we have been working towards developing our own e-discovery principles and guidelines, which have just recently made their way into many of the provincial rules.
When asked about spoliation cases in Canada, I was interested to hear Justice Campbell’s opinion that preservation of ESI was being practiced because of our discovery rules. I mentioned that in my practice, I have seen poor preservation practices, although some organizations and counsel are improving in this area. Cost sharing and cost shifting are also being considered more in Canadian cases.
While Canadians may look at US jurisprudence for guidance in e-discovery, the US cannot assume that US attorneys know Canadian law. When it comes to assembling a team for cross-boarder litigation in Canada, the US would be wise to use Canadian lawyers experienced with e-discovery issues, and use Canadian vendors and specialists in the e-discovery field. Similarly, Quebec counsel should be part of the legal team to address the very different civil law which Quebec practices.
To hear this interesting podcast, please click on the attached link: http://www.esibytes.com/?p=1276
On Tuesday night, Wortzman Nickle gathered its Review Team at Campbell House in downtown Toronto. The meeting’s agenda included both educational and social components, as well as a surprise special guest speaker. The ironic combination of e-discovery and technology in an historical, almost pioneer setting was not lost on anyone!
The educational component included Wortzman and Nickle’s “E-Discovery A to Z” presentation, with able assistance from Caskey. While our Review Team generally focuses on the review aspect of the e-discovery process, they are also involved on different matters with the preservation, identification and collection stages. Others also assist us with Records Management Policies. This was an opportunity to ensure that the entire Team was up to speed on the e-discovery stages and cutting edge technology.
The educational component was a two-way street, and it included Wortzman and Nickle obtaining information from our team. Well-versed in and experienced with numerous review platforms and e-discovery software, we solicited and received our review lawyers’ candid opinions about what technology is the best of the best.
Our special guest, Jonathan Redgrave, is a well-known e-discovery guru from the Washington D.C. area and a good friend to our firm. Presently practicing with Nixon Peabody, he has previously appeared in our blog as a guest contributor. Jonathan joined us on Tuesday night to provide our team with the emerging e-discovery trends from south of the border. He is an engaging speaker and as usual, charmed the crowd.
The social aspect of the evening afforded an opportunity for our various review lawyers to get to know each other, and the Wortzman Nickle lawyers, legal analysts and staff better, outside the context of document review projects. We have a very interesting and accomplished group of lawyers who work with our firm. They include a published writer, a film-maker and a former Olympian (a silver medallist no less!) to name a few. Many of our Review Team lawyers have been with us since we opened our firm in October 2007 – a few others worked with Susan Wortzman for years prior to that. With their sound legal and technical judgment, dedication to individual files, and e-discovery experience, our team really is the Dream Team for e-discovery.
The Canadian judiciary has not only read the Sedona Canada Principles but it is embracing them!
Most recently, the BC Court of Appeal in Dykeman v.Porohowski, [2010] B.C.J. No. 113 judicially considered the issue of whether “Internet postings” were listed with sufficient description on the list over which privilege had been claimed. The Court of Appeal referenced the Sedona Canada principles when it held that the postings has not been adequately “listed” for the purposes of British Columbia’s R. 26. Similarly, the Ontario Superior Court of Justice in Re: j2Global Communications Inc., and Protus IP Solutions Inc., [2009] O.J. No 5131 held that the applicant had proposed no search criteria for the requested document search as contemplated by the Sedona Canada Principles.
Lawyers beware: if you have not read the Sedona Canada Principles and are not applying them in the context of e-discovery, the courts may be taking that into consideration when making orders. If you require litigation support with your electronic discovery, contact Wortzman Nickle.
Interesting. I just attended a workshop titled “Litigation Readiness: The Impact of the Records Management Program”. According to the panel, following a market research survey, 80% of companies surveyed reported having a records management policy. I found this statistic extremely high and query whether these reported policies are updated, followed and audited regularly. I have my doubts about that.
However, only 60% of those policies contained a litigation readiness component, and only 20% of those utilized litigation readiness software. Further only 38% of those companies had a litigation response team in place to handle all of the e-discovery phases.
Also interesting – in the panel’s view (and these were employees of a service provider) the effectiveness of a litigation readiness program is based 90% on the policies and the team put in place, and only 10% on the software. In their words, technology is merely an “enabler” in the quest for defensible litigation readiness.
More later.
Nickle from New York with Andre, Wortzman Nickle’s Senior E-discovery Analyst and Project Manager at North America’s largest legal technology conference and trade show.
This overwhelming spectacle (this year, complete with demonstrators protesting GB fees in front of the venue!) offers lawyers, forensic vendors, records managers and other e-discovery providers the opportunity to network, attend education sessions, and scope out “the next big thing” in the technology exhibit areas. Breakfasts, lunches and dinners with our colleagues and friends is our favorite way to keep abreast of new technology.
While we are trying to look at everything, our focus this year rests at both ends of the e-discovery spectrum – Early Case Assessment and Review tools. We are always searching for faster, cheaper and more efficient solutions. There is amazing software available – stay tuned for our conclusions!
Wortzman Nickle is pleased to announce Rachael Chadwick is joining us as a Senior E-Discovery Analyst and Project Manager. Rachael comes to us after years of experience as a Law Clerk whose practice focused on e-discovery.
Rachael arrived just in time. January 2010 has started off with a bang! 2010 is the year for lawyers, in-house counsel and organizations to embrace e-discovery. Undoubtedly the new Rules of Civil Procedure that came into force in Ontario effective January 01, 2010 have had some impact on this. We have been busy attending Meet and Confer sessions, meeting with organizations that are anxious to have Records Management Policies in place in the calendar year and meeting with other organizations who want to ensure that they have litigation readiness plans in place. Top that off with several on going e-discovery review projects and we are off to an exciting start this year. The addition of Rachael to our team adds to our office strength and the breadth of our e-discovery experience.
Wortzman Nickle are off to LegalTech this week..stay tuned for updates!
Amendments to the Ontario Rules of Civil Procedure came into effect on January 1st, 2010. Since January 1, 2010 Wortzman Nickle has been busy attending Meet and Confer sessions with our clients and advising them on discovery plans.
Most importantly, Ontario has now formally adopted the principle of “Proportionality” and if all goes as planned, the culture of litigation in Ontario will be changing as well.
The new Ontario Rules adopt the Sedona Canada Principles and require the parties to agree upon a “Discovery Plan” (Rule 29.1.03) which includes the scope of discovery, timing for delivery of each party’s affidavit of documents, information with respect to the costs and manner for production, names of the persons who will be produced and any other information that will facilitate an expeditious, cost–effective discovery and ensure that the process is “proportionate” to the importance and complexity of the action.
Rule 1.04(1.1) will give judges the mandate to “make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved”. The new Rules further entrench “Proportionality” into the discovery process by providing the court with guidelines to consider when deciding whether a party must answer a question or produce a document (Rules 29.2.03):
The Supreme Court of Canada recently considered the principle of proportionality in Marcotte v. Longueil (City), 2009 SCC 43 (CanLII). Although the decision deals with a class action case in Quebec, the majority of the Court affirmed that the principle of proportionality confers a real power on the courts, and is not just limited to a principle of interpretation. The Supreme Court further held that proportionality is a valuable source of the courts’ power to intervene in case management to ensure that the litigation is consistent with the principles of good faith and balance between litigants.
The courts have always had the discretion to either expand or restrict discovery and production. (See the recent decision of Justice Cullity in Pearson v. Inco Limited, 2009 CanLII 37928 (On S.C.).) The new Ontario Rules, however, charge the courts with a more active role.
Lawyers beware – the days of the “document dump” are over. Similarly, the days of making unreasonable production requests are over. The new Ontario Rules require counsel to co-operate and work together to come up with a Discovery Plan. If they are unable to do so, the courts will intervene and apply the principle of proportionality in order to ensure that actions are not extended for years unnecessarily thereby increasing costs astronomically.
If you require assistance with your Discovery Plan, contact Wortzman Nickle.
To read the amendment please Click Here
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Blog | admin June 16, 2010 | 
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