Records Management and E-discovery Experts: How to Successfully Avoid Trial By Avalanche

Records management policies and e-discovery experts were in the press again in “Beware Requests for E-Discovery: Trial by avalanche set to become norm for legal tacticians”, written by Julius Melnitzer and published on Wednesday, July 7, 2010 in the Legal Post section of the National Post. Of particular interest is that this article captures the view of representatives from both the Canadian and U.S. courts. Their shared view? To save costs and time in e-discovery, companies should develop and implement defensible records management policies and hire experienced e-discovery counsel.

Both Master Calum MacLeod, a case Master for the Ontario Superior Court of Justice in Ottawa, and Judge Frank Maas, a Magistrate Judge of the U.S. District Court for the Southern District of New York, not only unanimously endorsed records management policies, but strictly warned companies of the implications of not having them.

Master Calum MacLeod cautions that such companies will be hard pressed to argue that a discovery request is unreasonable when they have no idea in terms of time and cost what is required to retrieve the information sought by the opposing party. He states:

“Companies without a protocol for managing electronically stored information are in big trouble for a number of reasons. It will cost them a fortune to respond to e-discovery requests; they’re going to have a tough time finding what they need and it will be difficult for them to raise the proportionality argument when they have no idea what’s involved in retrieving the information.”

What are the courts looking for in terms of a sound, defensible policy?  In the words of Judge Maas, “judges are looking for consistency, internal logic and transparency, and in certain cases, a retrieval policy that ensures metadata is not altered.”

With respect to e-discovery expertise, Judge Maas believes that unsophisticated companies are at the greatest risk.  He warns that:

“The difficulty is that these companies try to deal with e-discovery themselves without retaining experienced counsel, and then they end up spending far more money to salvage the situation.”

The view of these experts is that pro-active work saves time and money in e-discovery.  It’s difficult to argue with that theory.  Is your company prepared?

Pending Conference: eDiscovery Canada

Corporate Counsels’ Guide:  Developing a Strategic Approach to Containing the Costs of eDiscovery

Well-positioned on the heels of the G20 Summit in downtown Toronto comes Legal IQ’s (a division of IQPC) conference to assist corporate counsel in curtailing the rising costs of discovery. From June 28th to 30th, e-discovery experts (and those wanting to be in the know) from across North America will meet at the Sheraton Toronto Centre to address this very timely issue. 

What is interesting about this conference is its very balanced speaker mix of in-house and external counsel from private and public organizations, judges, and e-discovery vendors, from across both Canada and the United States. Primarily conducted in workshop and panel format, this conference emphasizes a very practical approach to minimizing the costs of e-discovery.  

Topics will include:

• Overcoming eDiscovery and informational challenges
• Conquering new sources of eDiscovery: Facebook and other social media
• Aligning the interests of in-house counsel, outside counsel and IT teams
• Building cutting-edge programs with a winning team that will reduce costs
• Solving eDiscovery problems in M&A and departing employees
• Using eDiscovery in criminal, fraud, tax and white collar crime cases
• Implementing the Rules of Civil Procedure to contain costs for corporations and governments

As a member of the Advisory Board for this conference, our Susan Nickle is co-facilitating a workshop on “Early Case Assessment Strategies and the Pitfalls of Disjointed Collection”.  

We’ll keep you posted on key (perhaps contentious?) issues arising at this interesting conference

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.

Wortzman on early case assessment..

I have just finished a cross-country conference tour.  I started on September 16^th 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 23^rd in Toronto discussing e-discovery issues.  The last part of my travels took me yet further east to Halifax on September 30^th 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.