A senior manager is fired and sues his employer for wrongful dismissal. He believes there are e-mails in the possession of his employer that clearly show improper conduct. For him, the issue is not litigation preparedness, nor is it how to collect and review millions of e-mails. His concern is extracting out of the employer those key e-mails that will help him prove his case. In the event that he still possesses some of his own e-mails, for example on a laptop, his practical problem is how to extract and review his own e-mails in a cost-effective manner. For many years now, the global electronic discovery industry has focused on the biggest cases and the biggest law firms involving millions of dollars of costs. Little effort has been made to assess what is truly needed and proportional for the vast majority of cases where access to the electronic documents actually makes things more efficient for parties.
June 13-June 15, 2012 - the prestigious 2012 Access and Privacy Conference in Edmonton, Alberta. For more information and to register online, visit http://accessandprivacy.uaextension.ca/
From the summary of my presentation: "In this dynamic and entertaining session, I will explain how the legal concept of admissibility is used to ensure the trustworthiness of electronic business records and how Canadian and international standards are applied to test the credibility of electronic records management systems. The implications go far beyond the four walls of the courtroom."
Lawyers can witness evolution as electronic evidence pushes paper right out of the courtroom. But that doesn’t make the necessary transformation any easier.
The following story was posted recently in a litigation support group by an experienced litigation support specialist who was hired to do scanning of closed files at a busy litigation law firm. He was responding to a conversation thread about the importance and meaning of job titles in the litigation support industry. I found his insight and descriptive language fascinating and felt it needed to be shared as broadly as possible. For someone like me, who has consulted with law firms and run a scanning shop, it rings very true. If you are a lawyer, litigation law clerk, litigation support staff or scanner operator for a vendor, you need to read this.
The source of the enormous leak of 250,000 US diplomatic cables as described in the Guardian November 28th:
“It was childishly easy, according to the published chatlog of a conversation Manning [former US intelligence analyst, now facing court martial] had with a fellow-hacker. “I would come in with music on a CD-RW labelled with something like ‘Lady Gaga’ … erase the music … then write a compressed split file. No one suspected a thing … [I] listened and lip-synched to Lady Gaga’s Telephone while exfiltrating possibly the largest data spillage in American history.” He said that he “had unprecedented access to classified networks 14 hours a day 7 days a week for 8+ months”.”
“Your Honour, the letter I’m referring to is in volume 4, Tab 3. [Pause.] Sorry, the pages aren’t numbered. [Waiting.] It’s about ten or twelve pages in. [Pause.] Sorry, I meant Volume 3, Tab 4. About half-way in. [Waiting.] Are you with me?” [Pause.]
[Two hours later:] “Your Honour, I believe counsel are agreed that we will need at least another day for argument. Thank you.”
Observation: Justice dragged to a halt by tab hunters is not justice.
For some time I’ve been considering an issue that seems to be essential in the the litigation hold process and preservation of ESI. The issue is that when a party reasonably anticipates the possibility of litigation they are under a positive duty to preserve potentially relevant ESI. But what exactly does “preservation” mean?
Darryl has never driven a car and has never been to Halifax in his life. He finds himself at the airport and needs to get downtown. He wonders whether he should a. Rent a minivan, b. Rent a sedan or c. Rent a convertible. (Darryl is a lawyer, and the client is paying for his travel expenses.)
Darryl decides to call a consultant. He asks the consultant which type of vehicle is best to rent. Since Darryl is alone and it’s raining, the inexperienced consultant recommends the sedan.
Darry convinces the clerk to let him rent the car by claiming he left his licence at home. But once in the driver’s seat Darryl realizes he is hopelessly incapable of starring the car, let alone driving it all the way downtown.
I happened to be at the airport and saw the whole thing unfold. I offered Darryl a lift in my rental car (which he accepted gratefully) and on the way downtown I politely said, “Next time take a limo!”
Many lawyers feel that the preservation of electronic files in civil cases should be simple sweet and cheap. After all, they reason, we are interested in the content, not some fancy-pants metadata. What they miss though is the essential function of metadata – it is not only evidence in itself that might be relevant, but it is the file folder or envelope that preserves – and possibly proves – the authenticity of the underlying content. From an evidentiary perspective the authenticity of electronic evidence may be presumed, but this presumption is rather easily rebutted.
The technology of capture is not as important as the process. More on this later.