Sometimes, You Have to Retreat to Advance

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.

A Night Out for Wortzman Nickle’s Dream Team

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.

Litigation Readiness – Nickle Live from LegalTech 2010

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.

Our latest discovery

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!

Caskey on Proportionality and the New Ontario Discovery Rules

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.

Judge Scheindlin amends her original order on January 15, 2010

 To read the amendment please Click Here

Pension Comm v Banc of Am recent decision…

 This entry is from a special guest and friend of the firm, Jonathan Redgrave.  Jonathan is a partner at Nixon Peabody LLP in Washington, D.C., and was the first chair (and is currently chair emeritus) of the original Sedona Conference Working Group on Electronic Document Retention and Production in the United States.  He has spoken at numerous conferences in Canada (as well as the rest of the world) and has been a key supporter of the work of Sedona Canada.

E-Discovery News from Across the Border 

Nothing like starting the year with e-discovery fireworks like an 87 page opinion from the Hon. Shira A. Scheindlin, a U.S. District Judge from the Southern District of New York.   Judge Scheindlin, of the Zubulake series of cases that have been oft-cited in cases and conferences on both sides of the border, had occasion in her latest opinion to walk through her concerns relating to legal holds, preservation and sanctions.  While the precise legal holdings of the case are certainly limited to her courtroom, the practical impact of the detailed decision is likely to have far reaching import. 

Fittingly for this blog, the first named plaintiff (of thirteen) hails from Canada: The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, LLC, et al., U.S. District Court, Southern District of New York, January 10, 2010).  In the course of the 87 page sojourn through facts and law, Judge Scheindlin take the different plaintiffs to tasks for various failures to preserve and produce information.  Her findings range from negligence to gross negligence, and sanctions imposed include additional (limited) discovery, an award of fees and, for some, an adverse inference jury instruction. 

What in particular can Canadians learn from below the border?  The failure to have a meaningful, written instruction to employees  to preserve information is simply inexcusable for Judge Scheindlin.  Making sure that this written instruction provides adequate instructions allowing the custodian to take appropriate action  is also critical to avoid negligence.  Further, leaving custodians to execute legal holds without supervision is also a no-no.  

The opinion also documents concurrent failures to disseminate the holds broadly enough and to capture and preserve appropriate stores of electronic information   In some instances, some key employees simply were not identified and informed.  In others, pertinent back-up tapes and computers were ignored and the evidence ultimately lost.  In the end, the defendants were able to demonstrate the gaps and omissions were significant enough to warrant the sanctions imposed on the plaintiffs. 

This opinion continues a trend that is emerging from other cases at the end of 2009 in the United States—judicial patience with inadequate and inept discovery preparedness and execution is wearing thin.  The premium on getting discovery (especially e-discovery) right is rising quickly.  There is a clear warning to corporate and institutional parties large and small—you need to know what you are doing with respect to the preservation and production of electronic information or else face significant consequences for failures. 

These lessons are not confined by the border by passport control, and Canadian clients and counsel alike should take heed.

To view the PDF of this file please Click Here

The Policies of Privacy, Records Management and the Recession

 Wortzman Nickle has been actively working  on records management policies and litigation readiness protocols.   In our experience,  privacy issues and the treatment of personal information are frequently raised as concerns.   There are many reasons for a company to appropriately collect and retain an individual’s personal information.   However, once the information is collected, certain obligations arise under applicable privacy legislation.

 The recent economic recession has resulted in a rise in privacy complaints, largely because companies are more frequently collecting personal information and they are struggling with the manner in which they handle it.

 Several provinces are reporting a significant increase in employment related privacy complaints.  In particular, it appears that employers are asking for personal information such as SIN numbers and other information to enable them to perform credit checks on prospective employees even prior to an offer of employment is made.  In some cases, the employer is not even advising the employee that a credit check will be completed.  This collection results in a number of problems: a lack of consent for the collection of the personal information, a failure to advise that a credit check will be performed, the inability of the company to justify why a credit check was required at that stage, and potential problems relating to the retention and disposal of the personal information.

 The best way to deal with these issues is with defensible policies and protocols.

 Is your business governed by PIPEDA?  Is your policy falling short?

The Personal Information Protection Electronic Documents Act (“PIPEDA”) provides that companies must obtain appropriate consents; collect only what personal information they require for their business purposes; safeguard the information appropriately; and, dispose of the information as soon as the purpose for which it was collected is fulfilled.

 To ensure your records management program is consistent and doesn’t run afoul of privacy laws, review your program as a whole.  Ensure that your retention policy integrates well with your privacy policies and all other litigation readiness protocols.  If your policies do not work well together, it’s time for a rewrite.

Caskey on Interim Costs

The issue of cost allocation of electronic information in the context of the discovery process has not been resolved in Canada. As a general rule, the interim costs of preservation, retrieval, review and production of electronic records is borne by the party producing them. Similarly, the opposing  party is required to incur the cost of making a copy for its own use, just as it had previously with paper documents. There has been a hesitancy on the part of the Canadian judiciary to make  other cost-shifting orders as costs in Canada are generally awarded at the final stage of litigation.

Then comes e-discovery which has given rise to a radical expansion in the quantity and type of disclosure. Sedona Canada Principle 12 clearly provides for cost sharing or shifting before the final stage of litigation either by agreement of the parties or by  court order.

Master Brott of the Ontario Superior Court has recently made such an interim costs order. In Borst v. Zilli, [2009]O.J. No. 4115, the parties agreed to retain an independent computer consultant (“ICC”) to copy the defendants’ computer data. They also agreed to retain an independent solicitor (“ISS”) to review the documentation for relevancy and privilege before it be produced to the plaintiffs. The Court held that the costs of the ICC should be borne by the plaintiffs in this case and that the costs of the ISS should be shared equally between the parties.

Litigants beware – Canadian courts are starting to make interim cost-shifting awards with respect to accessible electronic records! If you are concerned about the costs of your e-discovery litigation and how to best manage e-discovery in Canada, contact Wortzman Nickle.

Translation Required: E-Talk

New e-discovery products are coming to market on almost a weekly basis. They serve different functions and fit into different parts of the EDRM model (notionally being: preservation, identification, collection, processing/culling, review, and production). In researching these options, we are learning that the terminology used by forensic companies is often as diverse as the products they are selling. 

In particular, the term “review” is causing some confusion. In the legal context, “review” means the fifth stage in the EDRM model referencing the “lawyer review”. This is the phase after collection and processing/culling when lawyers review and code the records for relevance, privilege and to issues codes. At the review phase, we look for a robust review platform that allows customized coding fields and the integration of near de-duplication and/or concept clustering software. These features save our clients significant time and money as they avoid a linear review. 

However, in the forensic context, “review” often means the ability to view records (images or in native format) during the early case assessment or processing/culling phases. 

Does this potential conflict in e-terminology matter? Yes.  Suddenly, a solution billed as “end to end” is actually an early case assessment or processing tool – one which will require an export of data to an appropriate (but different) review platform down the road. This can mean an increase in time and cost for the litigant company – the one that believed it had purchased a single “end to end” e-discovery solution.

The lesson learned is this – ask lots of questions and clarify the terminology at every stage. Alternatively, call Wortzman Nickle and we’ll help you with the e-translation.