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.
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.
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!
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.
Susan3 is a quick and easy way to refer to the team at Wortzman Nickle. The name may be a coincidence, but creating a dynamic, cutting-edge e-discovery team required some thought.
Susan Wortzman and Susan Nickle worked together for ten years before establishing the first e-discovery law firm in Canada. Wortzman Nickle began operation in October 2007 and continues to participate in setting national e-discovery standards and advising on records management and litigation readiness issues.
The legal community knows that e-discovery “will have the biggest impact on the practice of law over the next five years.” (Canadian Lawyer Magazine, March 2008) So it was not long before the e-team needed to find another technically-savvy individual. With expertise in litigation and in-house counsel for a large media company, Susan Caskey was a seamless addition to the Wortzman Nickle team.
Blog, e-discovery solutions, software and tools | admin May 19, 2010 | 
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