Predictive Coding. Conceptual Clustering. Visual Analysis. Computers that can win on Jeopardy. New technologies related to the review of electronic information are being announced almost daily. It seems from the hype that we will soon have a “press here” button that will give a lawyer all of the relevant documents without any work.
Reality Check: while all of these technologies help to wade through the continually growing volume of electronic information, they are really only options which must be considered by those charged with the management of large volumes of electronic data. Leading edge technology is not for everyone, nor for every case. Even where its application will reduce costs and effort, there must be a balance struck between technology and human resources.
Introducing new technology into any process is fraught with uncertainty. To alleviate some of this uncertainty and ensure that the proper tool is selected for each job, Wortzman Nickle systematically analyses new and existing technological tools that assist in large volume document reviews. We know what technology will provide real benefit in any given situation, and will actually assist, rather than deter, human reviewers to get the job done faster, more accurately, and cost effectively.
Whatever role technology plays in any litigation search, and however sophisticated it becomes, human review will always retain a place alongside the technology as a way of getting quickly and efficiently to the document set that matters. If we leave aside those who sensibly and genuinely see the need to consider all possible ways of handling documents efficiently, there are growing external pressures on the rest to do so; they include increasingly active management by judges, competition with others for client business and, in some cases, mere survival as a litigation practice.
If you have any questions concerning litigation technology, reach out to Wortzman Nickle for help.
Tags: Document Review, e-discovery, e-discovery Canada, e-Discovery Costs, e-discovery processes, e-discovery project management, e-discovery software, e-discovery solutions, ediscovery, ediscovery Canada, ediscovery review, lawyer review, managing e-discovery costs, predictive coding, Technology
Blog | admin October 26, 2011 | 
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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 | Comments (0)
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.
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.
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.
