LegalTech Day 1

The annual e-discovery and legal technology show kicked off yesterday morning. WortzmanNickle were there to see what’s hot, what’s not and what’s the same.

As expected, Predictive Coding led the charge of buzz words once again this year. Many vendors offered their flavour of machine learning technology. However, some vendors appear to have realized, as we have, that Predictive Coding alone will not solve the dilemma of ever increasing e-discovery volumes and ever decreasing budgets and timelines. These forward thinking software developers are now integrating Predictive Coding into a package that includes all the tried and true e-discovery technologies, such as concept clustering, near duplication, email threading, and our trusted friend, keyword searching.

While there are many claims of unique Predictive Coding approaches, they all generally fall into one of two main categories – either quickly teach the computer up front what you’re looking for and then have it find your relevant documents, or let the computer observe as you search and find relevant documents using other methods, so that it can subtlety influence the result and present you with more likely relevant documents to review.  Both methods should theoretically end up with the same results.

Wortzman Nickle will be exploring these two approaches over the next couple of months and report in upcoming blogs and papers on the costs and benefits of each methodology.

Finding what you Search for

When searching for information, it’s not the “search” that’s important, it’s what you find. According to the analyst firm Gartner, what we once knew as search, is not just search anymore. In fact, it now uses the term “information access” to include a collection of technologies to help you find information, such as:

• content classification, categorization and clustering
• fact and entity extraction
• taxonomy creation and management
• information presentation (for example visualization)

Many of the tools around extraction, classification, and categorization of records remain supplementary to the essential task of organizing information. There are three main ways in which people look for information:

• Pattern Matching – using search criteria with the same physical attributes as the sought after information, such as keyword searching. Pattern matching requires that the found information contains the words or phrases in certain parts (e.g. the title, author, content), and possibly that certain words exists close to each other (e.g. clustering).

• Semantic Web Navigation – an artificial “web” of data that allows machines to understand the semantics, or meaning, of information. Relationships between discrete pieces of information are identified, usually in some sort of visual representation.

• Classified or Categorized, that which is organized by topic browsing. – This is where we use classification taxonomies and related structured organizations of information.

While only the first approach relies exclusively on “search”, the line between search and browse (either by link or by structure) blurs more every day, as clustering and guided navigation enable new ways for lawyers to facilitate useful access to large repositories. At the end of the day, all three approaches rely heavily on metadata. Clearly, to access information properly, first you need to organize it properly.

Wortzman Nickle has spent considerable resources analysing and employing various information access technologies in an effort to maximize data analysis and review efficiencies. For more information, contact us.

e-Discovery Planning

To paraphrase Rudyard Kipling, “If you can keep your head, while all others are losing theirs and blaming it on you – you’ve probably created a good plan”.

In many engagements, Wortzman Nickle is brought into the fray long after work has started. We are asked to take over bits and pieces of what one or more groups of people have been working on. Although we are presented with hard drives, images, backup tapes and paper, very rarely will we be provided with that key ingredient – “The Plan”.

Whether you are in-house counsel, outside counsel or a third party consultant, in many discovery matters, you’ll be brought into a situation and asked to “handle it”. The first daunting challenge that you will face is getting everyone to slow down and reassess.  There’s such a huge desire to keep things moving that no one wants to take the time to sort out exactly what has transpired and try to link that to the eventual desired outcomes.

If you’re put into one of these situations it is important that you’re not pulled in to the overall panic. There are some basic steps to take:

• Take a moment to write down the issues involved and potential outcomes
• Determine how much has been spent already on specific tasks, and whether the results were beneficial to the final goal.
• Set out exactly what human and technical resources are available
• Prepare a written plan of what will be done, when and by whom

To begin, catalogue the issues and resources that are available and to lay out a concise plan for how to track them.

Creating the plan is, however, just the start.  Another important element is in having all the stakeholders sign off on their part of the plan.  Ensure that there is an approval or verification step so that everyone understands their part of the plan.  Insist on getting a response to sending out project files and ensure that there is a single point of contact that will help with tracking all of the affiliated tasks.  A strong project plan needs constant monitoring.

Establish regular updates via email or conference call to ensure that all parties know of project progress. To achieve group collaboration, consider using a shared planning tool. Among other things, this helps cut down the “blame game” emails that tend to work their way around. If you’re sharing project management files, there’s all kinds of great ways using flags and colors (and in some cases even sounds) to alert everyone interested as to who has fallen down on the job, in a timely and constructive manner, so that steps can be taken to bring the project back on track.

Some of these points may seem to be fairly basic or common sense. Nevertheless, as in many areas of life, common sense tends to go out the window when a crisis hits. Taking a moment to assemble a plan, allows you to remain focused on what needs to be done to ensure a successful outcome.

Wortzman Nickle at North America’s Largest e-Discovery Conference!

On Monday, September 19, 2011, Sedona Canada, the Law Society of Upper Canada, the Ontario Bar Association, the Advocates Society and the Ontario e-Discovery Implementation Committee collaborated to present “The Ontario e-Discovery Institute: e-Discovery for All Cases and All Lawyers” in Toronto, Ontario. Reported to be the largest e-discovery conference in North America, over 610 people attended in person or by live webinar. It was a very diverse audience from across the country, illustrating a very real interest in all things e-discovery.

Susan Wortzman and Susan Nickle participated on panels on “e-Discovery Negligence” and “Cost Containment and e-Discovery”, respectively. Other panels featured Canadian and American judges and masters, members of the Bar from across Canada and the United States, vendors and litigation support professionals. This multi-perspective approach led to interesting and spirited discussions about privacy, cost-containment, emerging technologies, and other topical e-discovery issues.

Stay tuned to our blog as we feature some of these issues in upcoming posts!

Wortzman Nickle’s Training Sessions – Now Accredited by LSUC

Over the past several years, the Susans have worked with a significant number of Canada’s top law firms. Several of these firms have invited us in-house, to speak to groups of litigators and business lawyers about the perils and opportunities inherent in e-discovery, and the benefits of proper records management. Each session is 90 minutes in length. These presentations have evolved over time to keep pace with the changes in technology and approach to discovery.

We are pleased to announce that these Wortzman Nickle education programs have now been accredited by the Law Society of Upper Canada as follows:

• Our e-Discovery program has been accredited for 1 hour toward the New Member Requirement and 0.5 hours toward the Professionalism Requirement for ongoing members.
• Our 90 minute Records Management program has been accredited for 1.5 hours toward the New Member Requirement and 1 hour toward the Professionalism Requirement for ongoing members.

These time-effective and interactive sessions are ideal for a lunch meeting or firm retreat. Call us to discuss bringing these sessions to your team.

Sophisticated software can help lawyers, not replace them

On March 5^th, the New York Times published an article entitled “Armies of Expensive Lawyers, Replaced by Cheaper Software” which discussed the “new e-discovery software that can analyze millions of documents in a fraction of the time, and at a fraction of the cost consumed by human lawyers, even deducing patterns of behaviour”.   It discussed the explosion of electronically stored information, the technology used to analyze that data and how all this has disrupted the legal job market.

The article provided a clear and concise overview of the new systems available to assist legal teams.  However, the conclusion that these technologies will replace “expensive lawyers” misses the mark. All of the technologies mentioned in the article require a combination of machine and human interaction in order to operate. Humans have to “teach” the computer to identify relevant information. As with any educational process, the more highly skilled the teacher, the better the lesson will be. What the technologies will replace are lawyers working at very basic levels without a strong understanding of the case.

Although the new technologies will force lawyers to learn new ways to approach document discovery, the technologies are just one cog in the legal machine. Lawyers still need to understand the content of the documents to build their case. The new systems will help lawyers to zero in on the documents containing the relevant content.

No matter how sophisticated a computer system gets, it can’t make subjective evaluations. The legal process is not black and white – it’s ultimately based on judgement and inference. As a result, it will always require highly skilled talent.

A Comprehensive Records Management Strategy is Key to an Effective e-Discovery Process

A recent paper published by Information-Management.com found that companies who assume that an e-mail archiving solution will solve their e-Discovery requirements may be sorely mistaken, for two important reasons – e-mail archiving systems generally do not incorporate the advanced analytical features necessary to quickly and efficiently sift through the emails and identify what’s needed, and e-mail archives do not store all of the enterprise content that may be required for e-Discovery.

To be sure, an e-mail archive is an important addition to an organization’s content management arsenal, but it should be considered as just one component of a comprehensive records management system.

While e-mail is likely the source for the majority of the information asked for in most legal discovery request, correspondence on social media and other Web 2.0 technology is equally important. Currently overlooked in a number of cases, the explosive growth of social media in the business arena will eventually make this an equally important evidentiary source.
The paper also pointed out that some organizations rely too heavily on technology when carrying out the discovery processes, forgetting that discovery in today’s modern, digital-based enterprise requires the right balance of people, processes and technology. All too often, technology is implemented without considering the resources that must also be devoted to the processes. This can lead to undocumented workflow procedures that do not pass the defensibility litmus test.

It is critical that organizations clearly define records management and e-mail usage policies for all employees – especially those who produce substantial email. Wortzman Nickle has led the way in drafting workable records management policies for Canadian organizations.

Live From Applied Discovery’s “Understanding Proportionality”

Tuesday morning, Lexis Nexis sponsored a panel discussion on proportionality, discovery plans, and the effects that the new Ontario rules are having on the way litigation is being carried out. The panel consisted of Master Calum Macleod, Kelly Freidman of Ogilvy Renault, and our very own Susan Nickle.

Proportionality was described as one component of a set of rules designed to encourage a cultural change in the legal community. It is no longer acceptable to proceed unilaterally – parties must come together sooner and communicate more often, in order establish a real dialog and focus on the issues at the beginning of the matter, not at the end.

The new rules, and particularly the requirement for a discovery plan, are leading lawyers to develop a better understanding of technology. To be sure, most lawyers will not become techno-geeks, but it is important for lawyers to understand how electronic information is stored and where it likely resides. It is equally important for lawyers to appreciate that discovery has not changed just because documents are stored electronically – in the end, the case will hinge on same handful of documents. The only difference is that those documents will fit on a CD rather than in a banker’s box.

There were many questions from the approximately 90 people in attendance, including dialogue about  the concept of proportionality forcing litigants to think of alternative forms of proof, as some traditional forms of proof may be too cost-prohibitive.

The seminar clearly illustrated that the new rules are having an influence, and will continue to shape litigation into a more manageable, cost effective tool to resolve disputes.

The New Rules: Appealed and Appealing

 The case law continues to build under Ontario’s new Rules of Civil Procedure. Courts appear to see the appeal of not only the amendments themselves, but of the basic principles underlying those involved in discovery, proportionality and reasonableness in particular. 

The Appeal

These basic principles (in part) formed the subject matter of the recent appeal case of Wahid v. Malinovski, 2010, ONSC CanLII 3249, decided on July 7, 2010.  The court was asked to overturn the order of a Master who had ordered Wahid to provide a further Affidavit of Documents and to produce certain relevant document by a determined date. The main grounds for the appeal were that the Master misapplied Rule 29.01, that she failed to apply the “purpose and spirit of the new Rules”, that she misapprehended the evidence regarding the relevance of the requested documents, and lastly, that she failed to exercise her discretion judicially in granting an award of costs. 

The Dismissal

The court dismissed the appeal in its entirety. 

The value of this case?

In its decision, the court confirms that the amendments to the Rules do not negate pre-existing discovery obligations or judicial discretion.  

Pursuant to Rule 30.04(5), the court may at any time order production of unprivileged, relevant documents in the possession, control or power of a party…[n]one of the new Rules amendments hamstring the court’s discretion under Rule 30.04(5) to order production of documents for discovery. (para. 11) 

Further, the basic principles of fairness and efficiency in litigation, and the doctrine of proportionality continue to be endorsed by courts:  

Discovery is to facilitate settlement or, if that is not achievable, to make the trial process more efficient and fair. Concerns about discoveries being unduly long and costly, sometimes turning into fishing expeditions, have stewed in recent years:  see Osborne Report at 59. New provisions were added and certain provisions of the Rules were amended…to streamline the discovery process.” (para. 6) 

Rule 29.2.03 sets out a list of factors to be considered by a court when ordering production of unprivileged, relevant documents in the possession control or power of a party (including time, expense, prejudice, undue interference with the orderly progress of the action, availability of the information or record)…underpinning all of the factors listed in the Rule is the overriding principle of proportionality. (para. 9)

Production in the 21st Century – Lessons for Counsel

Recently, Master Short of the Ontario Superior Court of Justice canvassed the present state of litigation document management software and the potential difficulties that must be overcome by counsel working co-operatively. 

The Case

In Apotex Inc. v. Richter Gedeon Vegyeszeti Gyar RT, [2010] O.J. No. 2718, the defendant Ercros moved for a further and better affidavit of documents, including a particularized privilege schedule, and production of all relevant documents in the power, possession and control of the plaintiff, Apotex. 

Apotex moved for assistance in the particularization and the provision of enhanced electronic access to Ercros’ productions. Apotex alleged that the DVD originally produced by Ercros did not sufficiently describe its documents and further, that Apotex had experienced difficulty in retrieving specific documents from it. Ercros then produced its documents in a Summation Briefcase to allow Apotex to import the documents directly into its own document management software. Apotex took the position that was insufficient. 

The Decision

Master Short favoured Ercros, citing the new Rules of Civil Procedure, The Sedona Canada Principles®, and the test for proportionality. Ercros was granted the relief sought, while Apotex’s motion was dismissed. The provision of the Summation Briefcase was deemed sufficient in that Apotex had no further difficulties accessing the Ercros productions.  

Lessons Learned (and to be learned)

Noting that “there are lessons to be learned by the profession on how to deal with what are clearly problems that are contributed to by enhanced modern computing power and software”, Master Short commented favourably on counsel’s efforts in this case to fashion a sensible solution to the problems encountered. The use of electronic production to gain tactical advantage was discouraged: 

The requirement, in part arising from the “equality of arms” component of proportionality, does not mean that a party need provide a computer system to their opponents, but they do need to work together to facilitate the exchange of information and a practical production and exchange of the “bibliographic data” attached to their productions.” (para. 71) 

What does this case mean?

This case stands for a number of interesting and useful discovery propositions, including: 

• In this electronic age, a motion for a further and better affidavit of documents can be brought solely to obtain the court’s assistance in establishing the format in which electronically stored information will be produced along with the format, content and organization of information to be exchanged; (para. 73)  
• Courts expect counsel (to at least attempt) to solve their production problems in a co-operative and pragmatic fashion; (para. 42)
• Electronic production should not be used by one party to gain a tactical advantage over another; (para. 71)
• “Proportionality requires both sides to turn their minds to documents that are not in their direct possession. Often parties simply acknowledge they once had the originals of documents for which they now only retain a “file copy”. The requirement of the Form is broader. Particularly where there are corporate affiliates over which a party has the “power” to obtain copies. Whether listed in Schedule “A” or “C” such documents still need to be identified and produced, if available.” (para. 113)