Lawyers can witness evolution as electronic evidence pushes paper right out of the courtroom. But that doesn’t make the necessary transformation any easier.

Dan Scanlan kindly provided a few insights from the front lines on how that switch is going. Scanlan, a British Columbia crown counsel who wrote Digital Evidence in Criminal Law (Canada Law Book, 2011) has been watching the switch during his work with the Criminal Justice Branch Headquarters of the Attorney General, British Columbia (AGBC) and in other work as well.

PRIVACY
With digital source material, specific facets of privacy can get complex. For instance, a user might have a reasonable expectation of privacy for data on a home computer, but if copies of it exist elsewhere, the argument takes on shades of grey. In Scanlan’s words:

“Those charged with cyber crime offences will often know they are essentially broadcasting information to the web at large, but profess great surprise when police are able to obtain it. Without some knowledge of how computers interact with the internet, it is difficult for counsel to determine which data is resident on a home computer and which is now resident on internet servers where there may be no reasonable expectation of privacy.”

CHALLENGING ADMISSIBILITY
There is no question that electronic evidence per se is admissible, but that doesn’t mean that everything the Crown proffers has been properly authenticated.  Scanlan’s main concern here, a concern shared by members of the defence Bar, is that defence counsel rarely challenge admissibility of evidence because they “do not have the ready access to forensic examiners enjoyed by Crown.”

FORMAT
Scanlan admits a standard format for disclosure would improve efficiency, but he can’t see how the legal system in Canada would get there. Consider the three obstacles Scanlan lists here:

1. PDF has become something close to a standard format, but it is a long way from being used universally.
2. Database litigation products employed by counsel on larger cases do not use PDF (though they can usually export in it).
3. Digital evidence seized from an accused or third party will sometimes have to be disclosed to defence in “native” format to avoid alteration or loss of metadata.

Interestingly, on the civil side, there are standards for the exchange of evidence in electronic form, though they appear to be rarely used. See for example, the Canadian Judicial Council’s National Protocol [pdf].

EVIDENCE LAW REFORM
According to Scanlan: “The Canada Evidence Act already contains a number of provisions regarding the use of digital evidence. Statutory exceptions to the hearsay rule, based on necessity and reliability, would avoid situations where too many witnesses are called to prove digital evidence.”

ARE DEFENCE COUNSEL READY FOR ELECTRONIC DISCLOSURE?
In a word, yes. The desire to cling to paper-based disclosure has largely given way to e-disclosure, Scanlan says, adding “disputes are more likely to occur around format and organization than the type of disclosure.”

In larger cases, the only real barrier Scanlan notes now is whether defence counsel own or know how to use a “full litigation database product”. With new electronic discovery products on the market every day, it seems defence counsel are running out of excuses.

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 post is reproduced with the author’’s permission. Comments are welcome – they will be passed on to Mr. Cole.

—————— o0o —————–Re: Position Titles

Posted in the Yahoo Litsupport Group by: James Cole   

Tue Sep 6, 2011 2:49 pm (PDT)

I have the perfect example of what I mean when positioning people with the right skill set to the job you need done.

Last week I was let go from a temp job working at a law firm. I was hired to scan closed archive files (backfiles), for a firm that does a lot of asbestos, toxic tort cases. I was scanning in what I call, the Chinese wall, meaning I was not privy to their network, I didn’t name the files nor did I have a computer or software to use.

I was using one of those IKON Ricoh Aficio 3045, which was hooked up to a network. I was creating .pdf files and the paralegals were naming them.

When I first started I was working on lightly bound, grade A litigation docs (clean, crisp pages), producing 4 boxes a day, 20 a week (35 hour work week). These boxes were prep, scan and shred (no reassembly required). Then one of the paralegals asked that I reassemble them so that she could more easily name them. Then came the binders, went really fast (chomp, chomp) again prep, scan and reassemble. Sometimes I did 7 boxes a day, but on avg. 4 a day. The senior attorney and partner was pleased with my work and even told me that I could use my own judgment as to if I needed to scan tabs or as to how many pages to make the .pdf (some were as large as 1K pages)

While the partner was gone, I ran out of binders (all of these docs up to now were his cases). Then one of the other attorneys gave me her boxes, 27 of them. She and the other attorney of this 3-attorney office told me that there was no deadline, per se, but that they wanted this done in a rush. These were to be prep, scan and shredded and 500 pages per .pdf. The file clerk told her that you could not open a 1,000 page .pdf, which is so not true.

These boxes were heavily bound variety of docs, wrinkled, old, rice paper, various sizes and some double sided. When I started I continue to do prep 6 boxes and scan 4 of them in one day. She thought that was really slow.

She told me that I needed to keep up with her file clerk who said he could scan 1 box and prep 4 before the 1st box was finished being scanned. Now I have been working really fast, so fast that I kept hitting the nerve in my wrist trying to use the shovel to remove staples. OMG, some of these staples were rusted, brittle or monster staples being 1/4 inch thick. I had to dig them out. I was exhausted by the end of the day and just a pool of sweat since it was already so hot in the office.

Now in one of the meetings with the atty and the file clerk he asked me why I had some docs turned sideways; to mark double sided, I replied. Oh, with a bewildered look on his face (kinda tells me he wasn’t looking for them) He also asked me why I didn’t have them turn in 500 page stacks, which I replied, I watch the counter on the scanner.

So he claimed to prep 4 boxes to every one. I’ve never seen anyone do that so I asked him to show me how he does it. I had a box with about 1/4 of pages in it. I asked him if he could prep this heavy bound box before I finished scanning this. He said yes. OMG, he was right.

He ripped the correspondence files apart and other binding elements (and when I say ripped I mean physically ripped not unbind them), pulled every staple in a second flat and was just ripping though it like it was tissue paper. He told me not to worry about post-it notes and I said what if they cover up information on the page, then he said ok go ahead and pull them off.

There was no way I was going to be able to keep up with him. He’s like 23, 6’2, really strong wrists. I’m middle age, 5ft tall and out of shape.

My point being this: To him and those attorneys, scanning is just pushing paper into a machine. To me, I’m not just pushing paper into a machine, I’m collecting data. I am not as intimately knowledgeable about those documents as they were. I have no idea what might not be important. So my mindset is to capture everything. To remove those post-it notes, to capture the back side of double sided docs. And of course being from a primarily vendor side, I’m from a mindset that I should be careful not to rip or tear pages, keep them in order as I found them and to re-assemble them, if need be, the way I received them. Not tear the staple out of the corner, scan all as 8.5×11 and so forth.

I was talking to the file clerk previously and found out that he didn’t know what a Bates stamp was and he’s never seen Summation, Concordance, IPRO or anything else.

So here they were looking for someone who was really strong and to stand on their feet for 8 hours and run 120 miles an hour nonstop.

I’m the person who set up databases, works with Summation and IPRO, converts files and writes scripts to manipulate data.

I read the protocol from the senior managing partner for the law firm. He said these .pdf files could be searched if need be for any information they need in the future. I told the file clerk and one of the paralegal that these .pdfs being created were at 200 dpi. They are NOT searchable. Again the bewildered look glazed upon their face. I told the partner I was working with and he didn’t comment or look indifferent. So I’m sure there’s something they’re not telling me, whatever.

So I was let go for being too slow, when I started they told my recruiter that I was doing a great job, when I started working for a different atty I was too slow however, my production rate did not change.

I was a little unhappy about the way the file clerk was talking to me, saying “how u doing little buddy” and “good” in a long drawn out way like I was slow in the head or mentally challenged. He kept repeating the instructions which were really simple to begin with. I asked him do you think I’m confused or don’t understand, no reply. He kept dropping Bankers Boxes on the floor, I stepped out of the office and he said, “why you so scared?” Not scared, just curious as to what’s going on, I would reply. He would continue to ask me if I needed him to pick up a box for me, I’m a guy, that’s insulting, I’m not a weak little boy, the impression he was trying to portray to his boss. But I’m not one to complain, I see what’s he trying to do but, I just don’t care.

I was just a temp. I believe the industry standard is to scan a box every 2 hours so you can get 4 boxes in 8 hours with one scanner. Yes you can scan a box in an hour with the right equipment and yes I did scan a box an hour a few days while I was there however, generally speaking, to prep and scan by yourself and do a box an hour usually requires those docs to be lightly bound or straight runs, not freakishly bound. I was doing 4 boxes in 7 hours. He was doing 5 or 6 and prepping twice as much. I believe I was giving them above industry norm production and he was just like a superhero. I have only seen less than a handful of people like him in 20 years.

So my knowledge was way up here and his was way down there. I know what a Bates stamp is and can manipulate .pdfs, tiffs, databases and native files. He knows how to rip paper apart and shove it in a machine. Two very different skill sets. The should have cloned him or found someone just like him. Instead they asked for someone like me.

Am I upset, not really, I was just a temp. I don’t think the extra, what I perceive unrealistic production demand was fair to put on me in mid stream. To say that I should be able to do at minimum 4 boxes but 6-8 is the goal because the file clerk can is like saying I should be able to run the 100 meter dash just as fast as, Usain Bolt, the current record holder.

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? Preservation (we often assume) means that the ESI must be kept in the same form and in the same location unaltered and untouched – i.e. as it is kept in the normal course of business. But I don’t think that is always feasible. More basically, we all agree that at a minimum, preservation means that custodians must not allow potentially relevant ESI to be deleted or materially altered.

The question comes up very specifically when lawyers advise their clients to “preserve” (through the mechanism of a litigation hold notice), and the first thing clients do in response to such a notice is to go through their email, browsing and searching for potentially relevant messages, and then either print those messages or move those messages into a new folder created specifically for the litigation. The act of opening these emails, of moving them or printing them is itself problematic, because theoretically custodians should be preserving the email messages intact. The problem is that when litigation threatens, individuals have no choice but to go through their records, sometimes frantically, to ensure that they have the records that they need to instruct their lawyers appropriately. In real life this happens even before the actual preservation threshold is reached, as managers usually have a sense that litigation might arise well before counsel are retained.

Indeed, the rules in Ontario require parties to file with their statements of claim or defence any relevant documents on which they intend to rely. In order to gather these documents, the principles of maintaining ESI in its pristine format and environment, as it was kept in the normal course of business, becomes practically (and economically) impossible.