e-Discovery is a Business Process

In the U.S., many lawyers are calling 2010 “the year of e-discovery sanctions”. There were more sanctions and parties cited for failing to adequately respond to e-discovery requests than in any previous year. The costs associated with e-discovery are also growing at an exponential rate. As a result, corporate counsel are starting to realise that the costs and risks associated with scrambling to locate and organize e-discovery evidence after litigation strikes are just too high.

In Canada, things are not (yet) as daunting as in the U.S.  Canadian courts are opting to be more proactive, changing rules and adopting the Sedona Canada Principles to direct counsel down the right e-discovery path from the outset. However, the courts are making it clear that they will not tolerate parties who fail to properly address e-discovery processes.

So what’s the solution? According to a Forbes report, e-discovery needs to treated as a standard business process, like legal, corporate governance, HR, and IT, and not as a project that is kicked off on an as-needed basis.

As we emerge from the most recent recession with its associated financial restraints, this idea may sound too expensive to deal with at the moment. However, as the Forbes article suggests, companies should see this it as an opportunity to introduce cost savings into the organization, by changing the current corporate culture so that employees understand how their role is governed by and influences e-discovery requirements.

A side effect of this corporate wide ESI management revolution is that IT will end up spending much less time and money managing digital information, and employees will see a dramatic reduction in the time it takes to find the information they need to do their job. The cost savings from this alone will more than offset any expense due to corporate training and auditing.

In 2011, transform your corporation’s e-discovery approach from a tactical search and rescue mission into a strategic business function.

Live from the Georgetown Advanced e-Discovery Institute – Part 1

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.

A Comprehensive Records Management Strategy is Key to an Effective e-Discovery Process

A recent paper published by Information-Management.com found that companies who assume that an e-mail archiving solution will solve their e-Discovery requirements may be sorely mistaken, for two important reasons – e-mail archiving systems generally do not incorporate the advanced analytical features necessary to quickly and efficiently sift through the emails and identify what’s needed, and e-mail archives do not store all of the enterprise content that may be required for e-Discovery.

To be sure, an e-mail archive is an important addition to an organization’s content management arsenal, but it should be considered as just one component of a comprehensive records management system.

While e-mail is likely the source for the majority of the information asked for in most legal discovery request, correspondence on social media and other Web 2.0 technology is equally important. Currently overlooked in a number of cases, the explosive growth of social media in the business arena will eventually make this an equally important evidentiary source.
The paper also pointed out that some organizations rely too heavily on technology when carrying out the discovery processes, forgetting that discovery in today’s modern, digital-based enterprise requires the right balance of people, processes and technology. All too often, technology is implemented without considering the resources that must also be devoted to the processes. This can lead to undocumented workflow procedures that do not pass the defensibility litmus test.

It is critical that organizations clearly define records management and e-mail usage policies for all employees – especially those who produce substantial email. Wortzman Nickle has led the way in drafting workable records management policies for Canadian organizations.

Enterprise Content Management – “Winging it” is no longer good enough

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.

Email Obesity

According to a recent Radacati Group study (Email Statistics Report, 2009-2013), business users in 2009 received an average of 20 megabytes (MB) of email per day – and that figure is predicted to reach 31 MB per day by 2013. What this means is, if you take that 2009 figure – 20 MB per day – and multiply it by 260 business days, you end up with a figure of 5.2 gigabytes (GB) of email per user per year. But it doesn’t stop there. If your organization has 1,000 employees, this figure is really 5.2 terabytes of email per year!

Radacati also found that users sent and received an average of 167 emails per day. Again, at 260 business days per year, this equates to over 43,000 messages per user per year – all of which you’ll have to search through in legal discovery, without proper email management.

Clearly, email is not trivial – or free. On the contrary, it is a vital business function involving vital business documents that should be addressed in a strategic, professional manner just as you would any other essential business practice. A recent AIIM study on email management (Email Management – The good, the bad and the ugly), shows that email is clearly not receiving the attention from the C-suite that it should.

Respondents confess to an appalling state of affairs, with over half of respondents reporting to be “not confident” or only “slightly confident” that emails related to documenting commitments and obligations made by staff are recorded, complete, and retrievable. To make matters worse, only 10% of organizations have completed an enterprise-wide email management initiative, and 17% have no plans to introduce any email management. This is really too bad, as getting a handle of your email is not rocket science.

Good email management begins with the identification of business-relevant emails and a policy for the classification, storage and destruction of these emails in accordance to, and consistent with, your business standards. From there, establish guiding principles, reduce email glut, decide what to hold, identify roles and responsibilities, automate when possible, and work with a cross-functional team at your organization to address policies and practices.

Wortzman Nickle can help you realize all the cost and time-saving benefits of defensible email management. Call us for details.

Records Retention by the Numbers

A recent presentation by the Compliance, Governance and Oversight Counsel (CGOC) presented the findings of a soon to be released survey on current information governance practices. The survey revealed that, while 98% of the respondents consider defensible records disposal to be a key element of good records management, only 22% are actually able to carry out any type of records disposal. The problem cited by many is that people become “glued” to their information, and those who recognize the need to maintain proper records management (IT, legal, and records), are often left out of the picture.

The study is due to be released at the end of September, and explores the challenges associated with current leadership, ownership, and process management issues that organizations must address in order to implement effective records management. The study is published as part of a CGOC Benchmark Report which also includes models and tools to measure an organization’s progress and allow them to assess their risk. The study was conducted in collaboration with the Information Management Reference Model project of the EDRM.

Wortzman Nickle can show you how to melt the glue so that your organization can implement a workable, efficient records management practice.

Is Email Dead?

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.

Let your Geek speak to your client’s Geek

The International Legal Technology Association’s annual conference wrapped up two weeks ago  and the cyberways are abuzz with comments on the various presentations.  One discussion of note focused on issues facing corporate IT.  The message: they have no one to talk to inside the law firms.  In-house counsel speak to their internal teams.  Outside counsel speak to their teams. But the people who handle the data directly don’t talk to each other. And it’s causing problems.

In his seminar on defensible e-Discovery strategies, Browning Marean of DLA Piper in San Diego refers to this as the “Geek to Geek dance” (that is with a capital G out of respect to those who talk in zeros and ones).

Although corporations are getting smarter about the way they handle their ESI, bringing more technology in house and hiring more IT to handle it, Mr. Marean noted that both lawyers and their clients need to rethink the way they communicate with each other.  In particular, he said that they need to bring the data experts together to have conversations with each other.

The real hurdles that need to be overcome are not technological, they’re human.  Lawyers who try to decipher and communicate complex information about data to each other often don’t appreciate the details.  They either understand most, some or none of the conversation.  Even in the best scenario, a lot gets lost in translation.

The Geeks need to be talking to each other directly.  Moreover, these conversations need to happen at the onset of the case.  The Geeks, or at least the chief Geek, should also be integrated into the broader client development strategy.  Set up a lunch or a meet and greet between your Geek and your client’s Geeks so they can learn from each other in advance of the next big piece of litigation.

Wortzman Nickle can assist you in bridging the gap between legal and IT.  Call us for all your Geek-speak to legalese translation needs.

Our Newest Discovery – His Name Isn’t Susan!

Despite abounding rumours that we only hire people named Susan, Chuck Rothman has joined us…and he refuses to change his name to Susan.

A professional engineer, formerly the Director of e-Litigation Services at a major Canadian e-discovery forensic vendor, Chuck brings extraordinary technical advisory expertise to Wortzman Nickle.

As Director, e-Discovery Services at Wortzman Nickle, Chuck will provide technical and practical advice to law firms and corporations regarding the most efficient and cost-effective methods for all phases of e-discovery, from preservation through to production.  Chuck will play an instrumental role in further developing our practice in the records management realm. He will complement our team of counsel that advises our clients on records management policies. Chuck will assist clients in selecting the best software solutions and protocols available to manage the classification and organization of business records.

Wortzman Nickle is Canada’s e-discovery law firm, assisting corporations and their counsel to find practical and cost-effective ways to meet their e-discovery obligations.

To contact (and congratulate!) Chuck regarding his new role, email him at crothman@wortzmannickle.com.

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?