Solid State Drives – Delete Does Mean Delete

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.

Wortzman Nickle’s Training Sessions – Now Accredited by LSUC

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.

Sophisticated software can help lawyers, not replace them

On March 5^th, 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.

The New Rules: Appealed and Appealing

 The case law continues to build under Ontario’s new Rules of Civil Procedure. Courts appear to see the appeal of not only the amendments themselves, but of the basic principles underlying those involved in discovery, proportionality and reasonableness in particular. 

The Appeal

These basic principles (in part) formed the subject matter of the recent appeal case of Wahid v. Malinovski, 2010, ONSC CanLII 3249, decided on July 7, 2010.  The court was asked to overturn the order of a Master who had ordered Wahid to provide a further Affidavit of Documents and to produce certain relevant document by a determined date. The main grounds for the appeal were that the Master misapplied Rule 29.01, that she failed to apply the “purpose and spirit of the new Rules”, that she misapprehended the evidence regarding the relevance of the requested documents, and lastly, that she failed to exercise her discretion judicially in granting an award of costs. 

The Dismissal

The court dismissed the appeal in its entirety. 

The value of this case?

In its decision, the court confirms that the amendments to the Rules do not negate pre-existing discovery obligations or judicial discretion.  

Pursuant to Rule 30.04(5), the court may at any time order production of unprivileged, relevant documents in the possession, control or power of a party…[n]one of the new Rules amendments hamstring the court’s discretion under Rule 30.04(5) to order production of documents for discovery. (para. 11) 

Further, the basic principles of fairness and efficiency in litigation, and the doctrine of proportionality continue to be endorsed by courts:  

Discovery is to facilitate settlement or, if that is not achievable, to make the trial process more efficient and fair. Concerns about discoveries being unduly long and costly, sometimes turning into fishing expeditions, have stewed in recent years:  see Osborne Report at 59. New provisions were added and certain provisions of the Rules were amended…to streamline the discovery process.” (para. 6) 

Rule 29.2.03 sets out a list of factors to be considered by a court when ordering production of unprivileged, relevant documents in the possession control or power of a party (including time, expense, prejudice, undue interference with the orderly progress of the action, availability of the information or record)…underpinning all of the factors listed in the Rule is the overriding principle of proportionality. (para. 9)

Why Susan ³? For e-Discovery in Canada!

Yes it’s true, we are all named Susan!

Susan³ is a quick and easy way to refer to the team at Wortzman Nickle. The name may be a coincidence, but creating a dynamic, cutting-edge e-discovery team required some thought.

Susan Wortzman and Susan Nickle worked together for ten years before establishing the first e-discovery law firm in Canada. Wortzman Nickle began operation in October 2007 and continues to participate in setting national e-discovery standards and advising on records management and litigation readiness issues.

The legal community knows that e-discovery “will have the biggest impact on the practice of law over the next five years.” (Canadian Lawyer Magazine, March 2008)  So it was not long before the e-team needed to find another technically-savvy individual. With expertise in litigation and in-house counsel for a large media company, Susan Caskey was a seamless addition to the Wortzman Nickle team.

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