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.
Tags: discovery, discovery plan, e-discovery, e-discovery Canada, e-Discovery Costs, e-discovery processes, e-discovery project management, ediscovery, ediscovery Canada, lawyer review, managing e-discovery costs
Blog | admin October 4, 2011 | 
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e-Discovery software abounds, and more packages are coming on the market weekly. Gartner, an IT research and advisory organization, estimates that the e-Discovery software market in the U.S. will reach $1.5 billion by 2013. With many options to choose from, it seems that the key to running a successful e-Discovery project is to simply select the correct software package. Nothing could be further from the truth.
e-Discovery software is a tool. Like any tool, a skilled craftsman needs to wield it in order to produce a successful result. Given the complex nature and multiple nuances of e-Discovery, the skill level of the project manager is much more important than the software tool or tools selected to accomplish the job.
A case in point – de-NISTing. NIST stands for the National Institute of Standards and Technologies, a U.S. government agency tasked with settings technological standards. Four times a year, NIST releases a library of software signatures (hash values) for system and other common computer files. This library is routinely incorporated into e-Discovery software tools to automatically filter out files that are not likely to be relevant to a matter, in order to reduce the number of records that need to be reviewed (hence the term de-NISTing). Since review costs make up between 60% and 80% of a typical discovery budget, using automated techniques such as filtering with the NIST library can result in significant cost reductions.
This all sounds great. However, a recent examination of the NIST library revealed that it does not include signatures for Windows 7 system files or Microsoft Office 2010 files. Current estimates indicate that over 350 million computers are running Windows 7, and over 100 million run Office 2010. This means that using the common de-NISTing technique on a Windows 7 or Office 2010 machine may not filter very much, leaving a lot of irrelevant records that need to be dealt with some other way.
If a project manager simply relies on e-Discovery software that incorporates de-NISTing to take care of irrelevant system and program files, without a clear understanding of what needs to be accomplished or any means of reviewing the results produced, the number of records subjected to subsequent review may be significantly higher, resulting in dramatic e-Discovery cost overruns.
For more information on the role e-Discovery software plays in the larger e-Discovery process, contact Wortzman Nickle.
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!
Tags: costs, discovery, discovery plan, e-discovery, e-discovery Canada, e-discovery conference, e-Discovery Costs, ediscovery, ediscovery Canada, managing e-discovery costs, Sedona Canada Principles, Sedona Canada Principles ®
Blog | admin September 20, 2011 | Comments (0)
“The illiterate of the 21st century will not be those who cannot read and write, but those who cannot learn, unlearn, and relearn.” Alvin Toffler
Rapid changes in technology make this quotation particularly true in the e-discovery realm. New approaches, different digital sources of information, new and improved technology, and the practical realities of limited resources all challenge litigators to approach each file in new and innovative ways to minimize the costs of discovery. In short, one size does not fit all.
The moral of this story is to stay flexible. Be adaptable. Don’t get tied down to one approach, one tool, or one piece of software. In the words of Toffler, “learn, unlearn and relearn” to ensure that all of the phases of discovery are conducted in the most timely and cost effective manner possible. This is simple but not easy. It requires e-discovery literacy - a commitment to stay current on new and emerging discovery approaches and technologies: early case assessment, processing, predictive coding. Your law firm and your clients will thank you.
If you don’t know what’s out there, ask your IT department, a forensic vendor, or call us. We’re always happy to discuss all things e-discovery.
Concerned about declining workplace productivity, many organizations are implementing “no web surfing” policies. Intuitively, this seems like a good idea. However, in practice, current research shows that allowing employees to surf the net during work hours may actually increase productivity. In fact, banning the practice is actually counterproductive, as surfing time under such policies actually increases!
As reported in the Globe and Mail on Wednesday, August 17, 2011 (Report on Business/Careers B17), various studies confirm that surfers report “significantly lower levels of mental exhaustion and boredom and significantly higher levels of psychological engagement on a questionnaire”. Further, the study found that such surfing was found to be related to “such upbeat mental states as being excited, interested, alert and active”…as opposed to “negative mental states such as feeling distressed, fearful, hostile, and jittery.”
However, all web time is not created equal. The study confirmed that time spent by employees reading and answering email was found to produce negative rather than positive mental states. Ultimately, the article urges companies to compromise and to find a balance – to permit periodic web surfing while limiting time spent on personal emails.
One of the challenging and often expensive aspects of collecting data for litigation, regulatory investigation or audit is locating all sources of potentially relevant evidence. That exercise is difficult enough when considering only company equipment and devices (computers, Blackberries, servers, shared drives, etc.). The scope grows exponentially when one considers the personal devices possessed by employees, including home computers, cell phones, Blackberries, iPhones, iPads, etc. Your employees are using these personal devices for business purposes, which means that potentially relevant evidence is stored on devices your organization does not ultimately control.
Think this doesn’t apply in your business? Think again.
According to a study of 4,500 users in 13 countries by KRC Research (published in The Globe and Mail on Tuesday, April 19, 2011 on page B7), 40% of workers use their personal devices for business purposes. Further 50% of workers who use their own devices for business reasons access company networks without their employer’s knowledge.
Perhaps it is time to revisit your organization’s Records Retention, Acceptable Use, Security and/orTechnology policies?
Call us.
Solid state drives are gaining in popularity in laptop computers and tablets. Compared to their hard disk drive counterparts, solid state drives are more expensive and offer less storage. However, they are much faster and lack the moving parts that can make HDDs prone to failure, particularly in mobile devices that experience a great deal of movement. Solid state drives also consume much less power, allowing portable devices to be used longer between charging.
As with any digital technology, as they move into the mainstream, the price of solid state drives will fall and the storage capacity will increase. It is expected that solid state drives will virtually replace conventional hard drives in portable devices within the next 3 to 5 years.
All of this sounds great, except when it comes to computer forensics. For years, computer forensic professionals have been claiming that “delete does not mean delete”. When you drag a file into the Windows recycle bin, or delete an email in Outlook, a computer forensic technician can usually recover it. This is because, when you “delete” a record on a computer, all that happens is that the record is hidden from view and is suitably marked so that sometime in the future, the computer can replace it with newer data.
Unlike conventional hard drives, solid state drives are little computers unto themselves. They insulate the main device from all the nitty gritty details about storing and retrieving information. Among other things, the solid state drive automatically purges deleted information after 30 to 60 minutes. This is done to reduce power consumption, as the power is directly related to how much data is stored on the drive. Unfortunately (from a computer forensics perspective) this means that when you “delete” a file or email, after an hour, it is permanently erased from the solid state drive.
Although most e-Discovery matters only involve active data, there are situations such as fraud or harassment, where deleted information may be important. The widespread use of solid state drives will make investigations such as these more difficult.
For more information about the computer forensic implications of solid state drives, refer to the Journal of Digital Forensics, Security and Law, Volume 5, Number 3.
Tags: Computer forensics, deleted emails, deleted files, e-discovery, e-discovery Canada, ediscovery, ediscovery Canada, fraud, investigations, solid state drives, Technology
Blog | admin April 20, 2011 | Comments (0)
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.
Tags: discovery, discovery plan, e-discovery, e-discovery Canada, e-discovery processes, e-discovery project management, ediscovery, ediscovery Canada, lawyer review, managing e-discovery costs, meet and confer, Proportionality, Records Management, Sedona Canada Principles, Sedona Canada Principles ®
Blog | admin April 15, 2011 | Comments (0)
On March 5th, 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.
Tags: costs, discovery, e-discovery, e-discovery Canada, e-Discovery Costs, e-discovery processes, e-discovery project management, e-discovery solutions, early case assessment, ediscovery, ediscovery Canada, lawyer review, litigation support tools, managing e-discovery costs, Proportionality, review platforms, Technology
In-house e-discovery, Proportionality, e-Discovery Costs, e-discovery in Canada, e-discovery solutions, early case assessment, lawyer review, software and tools | admin March 22, 2011 | Comments (0)
Another year at LegalTech New York.
We are told that during the three days that the doors are open, more than 10,000 people will view the wares of the over 400 exhibitors, attend more than 50 seminars, and network with the other attendees. For Wortzman Nickle, this year is about new technology and networking.
Many vendors are exhibiting new user interfaces to their software to make it appear that reviewing millions of documents will be easier. While limited efficiencies will be realised through these updates, these vendors appear to be missing the boat – the holy grail of e-discovery is not making it easier to review a million documents, its reducing those million documents through automated means so that only a small fraction actually need manual review.
The vendors who are really catching our attention are showing us tools that offer Predictive Coding. Where last year the marketing buzz-word was Early Case Assessment, this year, the cutting edge products in 2011 incorporate Predictive Coding – the ability of a lawyer to teach the computer what a relevant document is by sampling a small set, and then using the computer to apply that knowledge to an entire population of documents automatically. While this technology promises to revolutionize the way electronic discovery is handled, it’s still too early to see its widespread acceptance. In fact, right now, the most common use of this technology is to organize the documents for manual review into bundles of documents with the same topic so that they can be reviewed more efficiently – the million documents are still being reviewed, just slightly faster.
