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=12010377bemoans 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.
- Satisfy the legal and business needs of your clients.
- Keep clients informed of the nature, costs and benefits of electronic evidence.
- Communicate clearly your vision for the firm’s approach to managing evidence.
- Use technology effectively to enhance the quality of advocacy.
- Plan every case and allocate sufficient resources.
- Make sure every member of the litigation team understands his or her role.
- Educate, train and support all users of litigation technology.
- Co-operate with opposing counsel on production matters.
- Adapt industry-standard document production protocols for your use.
- Document and follow best practices for handling original client data.
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
As mentioned in an earler post, the final English and French versions of the JTAC National Model Practice Direction and National Protocol for the Exchange of Evidence in Electronic Form have been approved by the Canadian Judicial Council. They are expected to be posted on the Canadian Judicial Council website and on the LexUM E-Discovery Portal in Word and PDF formats.
Coulter Osborne has submitted a Summary of Findings and Recommendations arising from his review of the civil justice system, which he was asked to undertake in June of 2006. The Final Report of the Review is expected to be delivered shortly.
From the transmittal letter: "As set out in the Terms of Reference, I have reviewed potential areas of reform and made recommendations to make the civil justice system more accessible and affordable. I believe the bulk of the recommendations are suitable for implementation within a reasonable time and, if implemented, will enhance access to justice for Ontarians."
The Report strongly supports technology initiatives as between counsel, by judges, and in court administration (section 16).
To access the complete Summary, or provide feedback, see
http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/cjrp/
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?"
Ottawa – September 11, 2007 – At a meeting of the Council, the National Model Practice Direction drafted by the Judges Technology Advisory Committee ("JTAC") after extensive consultation, was unanimously approved.
The Practice Direction will be translated into French and is expected to be posted on the LexUM Electronic Discovery Portal –
http://www.lexum.umontreal.ca/e-discovery/ in October .
British Columbia and Alberta have already passed Practice Directions or Notes consistent with the JTAC standard. The Council has formally requested Chief Justices of other jurisdictions to consider implementing a Practice Direction for their own jurisdiction.
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.
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