Had a call this morning from a lawyer at a reputable mid-market firm who is keen to get his e-discovery committee off the ground with some policies and procedures. He knows that by January he and his Toronto colleagues will have to prepare discovery plans and deal with the realities of e-discovery. However, he is meeting real resistance from certain partners. “Our only responsibility”, they say, “is to tell our clients they have to comply with the Rules. We don’t have to tell them how!” I think there’s a confusion here between (a) meddling in your client’s internal IT processes (which you are not qualified to do) and (b) providing guidance to your clients on legal and procedural matters which may end up being determinative of their case! Even if it isn’t a matter of professional competence (which I think it is) wouldn’t it be a matter of good customer service?
Frequently lawyers ask me to find “all e-mails” for certain custodians, in certain date ranges on certain topics. The assumption is that we look at the contents of the corporate e-mail server (usually Exchange or Notes) and the local client. E-mails can exist in many forms however, many of which are often overlooked in superficial investigations. Some of the more obvious “alternate” sources of e-mail are personal e-mail web services (Yahoo, Google or Hotmail to name three of the most popular); social networking sites (FaceBook, LinkedIn etc.) and smartphone and Blackberry messaging of various sorts. But other types of important e-mail messages found closer to home are less obvious: - messages saved by the user as loose files outside the e-mail system in .txt, .html, .msg or other format - e-mail messages embedded as text within the body of another e-mail (as opposed to an attachment), in which case Author, Recipient, Date and Subject fields are not effectively searchable - messages sent and received by the custodian’s administrative assistant or other delegate - messages crafted and managed in CRM or other programs not normally considered as messaging applications Lawyers should be careful when reporting to clients that they are confident having searched “all potentially relevant e-mails.” Team building requires an optimum mix of skills and capabilities. With several hundred so-called e-discovery vendors littering the landscape, how should one go about selecting the right one?
A recent story in the Economist
http://www.economist.com/business/displaystory.cfm?story_id=12010377 bemoans the costs associated with e-discovery, especially in American style litigation – in which all relevant documents need to be produced. This is contrasted with jurisdictions which are devloping a more inquisitorial style such as “Britain, Canada and Australia” in order “to minimise the threat from e-discovery.” This is a shorter version of the Ten Principles posted at the end of August on SLAW. My purpose is to provide a framework for the development of an effective litigation support environment in law firms. Please feel free to post any comments.
The judges of the Supreme Court of Nova Scotia have tentatively approved new Civil Procedure Rules. Part 5, relating to Disclosure and Discovery, has been completely reworked to deal with electronic discovery and the exchange of documents in electronic form. See http://www.courts.ns.ca/rules_revision/revised_rules_feb_08.htm A Records Manager from a leading engineering and construction company asks:
"In Sedona principle #5 the value of information being sought is weighed against the time and expense necessary to retrieve the information. This seems to suggest that an organization that has taken the trouble to create a highly-organized information environment would be obligated to produce more information during discovery (because it is easier and cheaper) than an organization with a disorganized or even less-organized information environment. Could you comment on that?" From the Court’s website:
"The Court of Queen’s Bench has developed Practice Note 14 to provide guidance to the legal profession and the public regarding the preparation, management and presentation of electronic evidence. This Practice Note was developed after extensive consultation with members of the profession representing law firms of all sizes, sole practitioners, and litigation support professionals. In the context of document discovery, many outside counsel advise their clients to search for relevant e-mails, and then print them out or burn them to a CD for review. That practice is no longer sustainable as a matter of law or practice.* By ignoring the obligation to preserve not only the content of e-mail messages but the metadata associated with them, you may be putting your clients at risk of spoliation sanctions.**
Reviewers should be aware that e-mail attachments listed in an e-mail message may not appear in the review database in the same order in which they are listed. Suppose you send an e-mail that includes the following: "please find attached a copy of my resume (resume.doc), a letter of reference (letter.pdf) and a sample of my writing (writing.doc)." The reviewer would expect to find these attachments in the order listed. However, e-mail attachments do not actually have an "order" in the e-mail – they are simply bundled together in the message file. Upon extraction by an e-discovery process, the attachments need to be organized in some form, so typically they would be extracted in alphabetical order. In that case, letter.pdf would be the first record after the message, followed by resume.doc and then writing.doc. | M. FelskyKeeping track of the essentials  ArchivesNovember 2011 CategoriesAll |
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