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 | 
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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.
This year, Wortzman Nickle presented on three separate topics at the Osgoode course on Electronic Evidence, held in Toronto on January 24th and 25th.
Chuck Rothman and Karen Groulx of Pallett Valo LLP presented the “Admissibility of Electronic Evidence”. The unique properties of digital information compared to its paper counterpart were explored, and the speakers emphasized that admissibility needs to be considered from the start – a misunderstanding regarding the process that created the electronically stored information may ultimately render the information inadmissible.
Chuck and Karen also discussed social networks and cloud computing, and how they may impact electronic discovery. The growth of social networking in the corporate environment is becoming exponential – when was the last time you saw an ad that didn’t ask you to visit the company’s Facebook page? The use of cloud computing is also growing at a substantial rate, with some predictions suggesting that most electronically stored information will be stored “in the cloud” in ten years. Although these technologies will change how electronic discovery is conducted, the basic tenants will remain the same – electronic discovery is still discovery, with the same legal considerations. Only the techniques are different.
Susan Wortzman and Susan Nickle explored “Obtaining Relevant Electronic Evidence”, with a focus on how to defensibly obtain such information first from one’s own client, and then from opposing parties. One of the key issues raised by lawyers in the audience was how to properly cooperate with opposing counsel when he/she refuses to participate in the discovery plan/meet and confer process. While this lack of collaboration (regrettably) continues to be a problem, there are ways to protect your own client. In such circumstances, Susan Wortzman recommends drafting your own client’s discovery plan and sending it to the other side. By failing to respond, counsel may tacitly approve the plan.
As conference season is now in full swing, you can expect to see reports from a number of pending conferences, including Legal Tech New York 2011, in the coming weeks.
All too often, decisions on what e-discovery solution to implement are based on flashy sales presentations and vague explanations of how the systems function. Rarely does the end result surface in the decision making process. More often than not, the bells and whistles of the product tip the scales.
While a good user interface and flexibility in creating search criteria help to improve the usability of a product, there are other aspects of the product that are equally important, such as:
- The ongoing operating costs – even if the software is purchased outright, that cost needs to be amortized over the life of the product. Many systems have annual maintenance fees that can add up to 25% yearly to the cost of the product. Some products come with a volume fee as well. Since e-discovery vendors are generally much more efficient (due to significantly larger volumes of work) than law firms when it comes to dealing with ESI, many law firms find that they can’t pass the full capital and operating costs of their in-house software onto their clients.
- IT support – law firm IT systems are set up to mainly support the storage of documents. This usually involves relatively little ESI storage space, compared with storing a client’s data during a review (which can run into the hundreds of gigabytes or even terabytes). Although adding storage space is not technically taxing, supporting that added space with the existing IT staff can be a challenge.
- Collaboration – e-discovery solutions are purchased to handle the review of large numbers of documents. This by its very nature necessitates a team approach to the document review project. While collaboration and project management features of software solutions are important, equally important are the network resources required to ensure that each reviewer has sufficient access to allow them to achieve the desired efficiency. A stellar review platform can be rendered unusable by slow network performance.
- e-discovery expertise – an e-discovery solution is just a tool. How that tool is used depends on the capabilities and knowledge of the person wielding it. Craftsmanship and expertise is just as important in e-discovery as it is in furniture building.
It’s all about the end result, not about making the journey in style. Too often, the ultimate process that needs to be completed is not well defined, leading to decisions that don’t work or are so complicated that the new tool never achieves widespread acceptance in the workplace.
Don’t be drawn in by the rhetoric of gurus. So-called authorities all too often focus on the fluff of theory, paying more attention to the means than to the end. There are people out there who talk about e-discovery but aren’t actually working in e-discovery on a day-to-day basis. They will tell you in theory how to do things, but you’ll spend many moons actually figuring out how to do it yourself.
When you need to get from Point A to Point B, consider whether a Chevrolet can do the job as well as a Porsche. Wortzman Nickle can show you the way.
As expected, the second day of the Georgetown University Law Center’s 7th Annual Advanced e-Discovery Institute contained as compelling topics as the first day.
Craig Ball led an informative session on databases, explaining what relational databases are, how information is retrieved from these storage systems, and most importantly from an e-Discovery point of view, how the data within a relational database can be preserved and produced. The importance of this issue was highlighted through an interesting statistic Craig presented – in enterprises, 47% of all ESI is stored in a structured manner. A lot of emphasis is placed on the 31% of unstructured information (documents, spreadsheets, etc) and the 22% of semi-structured information (emails, instant messages), but almost half of all ESI in an organization is routinely ignored.
The afternoon was highlighted by discussing the cloud and associated technologies (social media, multi-tenancy, interactive websites, Wikis, virtualization and avatars). It was generally agreed that this is both a misunderstood area and of great concern to the legal community. Issues surrounding this arena run the gamut of e-Discovery, including preservation, collection, authenticity, control of content, and privacy. Circumstances that have never been addressed before are now moving to the forefront. For example, when an organization is using cloud storage that is co-mingled with other organizations’ data (a common occurrence in the cloud) and a litigation hold is place on the data, does this mean unrelated organizations’ data is also preserved by association? Or when someone is using an alias identity (an avatar) on the internet, how does one go about attributing an act to a person or authenticate what was carried out?
While the future is definitely going to see an evolution in the way discovery is carried out, the good news is that the e-Discovery legal community is being very proactive in reviewing and analysing emerging IT trends. New cloud computing guidelines are already on the way to address at least some of the anticipated issues.
This year, the Georgetown University Law Center is holding its 7th Annual Advanced e-Discovery Institute in Arlington, VA. The line up of speakers includes a who’s-who of e-Discovery in the U.S., including the Hon. Paul W. Grimm (Victor Stanley) and the Hon. Shira A. Scheindlin (Zubulake and Pension Fund).
The topics discussed on the first day ranged from a review of e-Discovery rulings in 2010 (at last count, there were over 250 cases this year with specific e-Discovery rulings), Proportionality, the Business of e-Discovery, and a compelling discussion about International e-Discovery.
The first session was a roundtable discussion by six judges. It was generally felt that this year could easily be branded the year of e-Discovery sanctions. While the number of sanctions related to e-Discovery negligence was not great (the four most well known were Pension Fund, Rimkus, Southern New England Telecom and Victor Stanley), the number of cases where sanctions were considered has increased dramatically. Other topics included cooperation, proportionality, obtaining ESI from outside the U.S. and obtaining ESI from third parties (particularly ESI hosting vendors, i.e. the cloud).
A session on the nature of the e-Discovery industry was extremely interesting. The panel and audience agreed that in-sourcing e-Discovery will continue, but will in all likelihood not become the norm. While e-Discovery software certainly makes in-sourcing easy enough, the big stumbling block was viewed as the lack of sufficient qualified people to perform the work. Most of the session centered around the question of whether the market can deliver “cheap and correct” e-Discovery. The general consensus was that the status-quo will continue until the decision makers realise that e-Discovery is as much an IT process as it is a legal process.
Although it wasn’t discussed in any great detail due to lack of time, one forecast of the e-Discovery landscape in 2020 was that it would no longer exist. Of course, discovery would still be around, but by 2020, organizations would have a good handle on the management of their records, and the documents needed for litigation would be available at the click of a mouse…assuming mice are still around in ten years!
Tomorrow’s discussions look to be just as interesting. Stay tuned for part two of this special blog report.
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.
Tags: costs, discovery, discovery plan, e-discovery Canada, early case assessment, litigation readiness, managing e-discovery costs, meet and confer, Proportionality, Sedona Canada Principles
Blog | admin October 22, 2010 | Comments (0)
Organizations that think nothing of investing significant sums in systems and processes to manage their financial assets, physical assets and human assets rarely even consider implementing a strategy for managing information assets. Unfortunately, the volume of information that is being created and maintained by organizations nowadays is rapidly approaching a critical mass where just “winging it” will no longer suffice.
OK, maybe they’ll automate a specific process, like email archiving. But in terms of getting the corporate consciousness around the legendary “80% of the information in our organization that is unstructured,” they’ll get to that sometime, someday, somehow. The strategic necessity to manage information effectively is rapidly approaching, with devastating consequences for those who assume they can wait.
In the absence of a uniform information management strategy, most organizations arrive at what passes for a strategy simply by building on their current processes using the technologies and tools already in place. These tools are often the result of decisions made years ago, usually by individual departments. Although the prospect of simply ripping out this accumulated infrastructure is generally not an option, there are some hard questions that organizations should ask in terms of integrating and leveraging what they have and driving future decisions against a uniform, comprehensive strategy.
The good news is that there are a lot of content and records management options out there. The bad news is that there are a lot of content and records management options out there.
Wortzman Nickle, the leaders in e-Discovery and records management, can assist in determining which solutions would best fit an organization’s specific information culture, so that content is treated with the same respect as the organization’s money, inventory, and people.
A recent study carried out by the Pew Research Center (http://www.pewinternet.org/Reports/2010/Cell-Phones-and-American-Adults.aspx) found that texting has permeated generational boundaries. Sure, adults still don’t text as much as kids do, but the numbers are climbing.
While this is interesting on many levels, the big question in terms of e-Discovery is what the enterprise is doing to adapt. Sure, teens are several years away from entering the workforce, but the enterprise has only been tip-toeing their way around mobile management. By the time these texting teens are ready for a job, will the enterprise look any different?
The study also raises questions about how these texting trends are influencing the way companies and organizations reach out to these demographics. If teens are abandoning Facebook and don’t use Twitter, how are companies getting their attention? If more adults start texting, it could mean that it’s in place of something else, like email?
From records management to communication to web publishing, is the enterprise prepared to operate from a mobile platform? And if so, how is this mobile information going to be collected and integrated into the traditional litigation discovery environment?
Of course, texting may not even be around in ten years (it didn’t exist ten years ago). But this is exactly our point: how does the enterprise and legal community plan to keep up with evolving trends and technologies?
As fun as it is to learn about behavioural trends, it’s even more important to be ready to change course as a result. New media and technology affords users new ways to access and exchange information with others. However, it also challenges the legal community to deal with these ever evolving forms of communication, or risk standing idly by and completely missing the mobile smoking gun.
