Philippe Senécal, Legal Counsel at Ledjit Consulting Inc.provides the attendees with an introduction to forensic methodologies, procedures and pitfalls as well as tools for locating and reviewing data, metadata, and antiquated formats. Given the details level of Phil’s presentation, we won’t blog about it and refer you to the Powerpoint directly:
Archive for February, 2010
The Latest Technological Solutions to Today’s Forensic Challenges
Thursday, February 25th, 2010The Effective eDocument Retention Program – Policies, Processes and Solutions
Monday, February 22nd, 2010Shaun Saldanha, eDiscovery Manager (Litigation Risk) at the TD Bank Financial Group, and Rob Gerbrandt, Senior Consultant with Ledjit Consulting Inc. looked at the development and implementation retention program.
Types of data:
Structured and Unstructured
Where a document resides is irrelevant: a document is a document is a document
Instant messages: some companies deals with them as ephemeral and transitory documents. At TD, they divided the documents in a regulatroy framework and equated instant messages and emails as one type of document.
The idea is to retain the right information, in the right location for the right amount of time
COSO framework
Key player is people: without people, the system falls apart. Employees need to be involved at all stages of the process to identify all the risks that need to be managed, from planning to implementation and auditing.
Key drivers:
- Regulatory needs (Banks, SEC, SOX, etc.)
- Industry
- Business needs
One can’t focus only on the applicable laws, but also and perhaps most importantly, on the needs of the organization, hence the necessity to involve employees at all levels.
Most attendees’ organisations do not have a direct channel and opened communication between IT and legal. They need to talk when handling urgent issues. It is important to develop a clear process with continuous dialog. However, the process will depend on the organization and its risks profile.
How often is legal involved in the planning of technology implementation? What about decommissioning systems?
Federated cost : IM benefits to the whole enterprise. No particular group, particularly the legal department which is already a cost center without a prefixed budget, wants to foot the bill… Furthermore, many lawyers feel that legal is now forced to pay the price of historic information mismanagement! “Wasn’t it the IT department taking care of information? – No, IT only cares about the “T”, i.e. technology; the “I”nformation belongs to the end-users…” So, one of the first questions that needs to be answered is who pays what and how? Retention might be an opportunity for green initiatives and vice versa.
Primary challenges of retention programs is:
- Lack of clear ownership
- “Why not keep everything? Storage is cheap”
- Not a “sexy” initiative
The best way to get buy-in is to start small by grabbing the low-hanging fruits and quickly show the ROI.
Welcome to the eRecords Academy for Corporate Counsel
Monday, February 22nd, 2010Full-house at the Canadian Corporate Counsel Association (”CCCA”) eRecords Academy for Corporate Counsel! Ledjit will be blogging live to provide its clients who could not attend with the relevant content.
Paul Ouellette welcomed the attendees and introduce Dominic Jaar for the opening remarks. Here is the draft address:
Introduction
- Good morning
- Good news about Hockey: Canada Beats U.S. 16-2 – in Kandahar
- Thanks CCCA and Paul Ouellette for
- organizing the conference and
- giving Ledjit the opportunity to set the agenda
- Thanks Rob Gerbrandt and Bonnie North for putting the conference together
- Recognize the time given by speakers to prepare and attend;
- plus travel (from East to West, South and …
- Attendees
- Many clients
- Individuals representing organizations who share Ledjit’s views re the importance of IM in this information era to:
- i. Increase efficiency and productivity
- ii. Ensure good governance
- iii. Manage risks
- iv. Improve compliance
- v. Reduce costs and burden
- Objectives of the conference
- Create an opportunity for in-house counsels to exchange with IM and e-discovery experts
- Assess the gap between best practices and existing initiatives in organizations doing business in Canada
- Hear the perspectives of the different stakeholders on the new informational landscape:
- i. Archivist and record manager
- ii. IT/IS
- iii. Lawyer, paralegal, lit support
- iv. Judges (Justice Colin Campbell)
- Invite you to make it an interactive session where
- good and bad experiences can be shared;
- there is no such thing as stupid questions;
- i. Like in Vegas and with the Sedona Conference: “what is said at the eRecords Academy stays here!”
- You have a group of knowledgeable speakers and world-renown professionals:
- i. Use and Abuse from them!
E-Discovery Case Report – Is everything enough?
Monday, February 8th, 2010In Bell ExpressVu Limited Partnership v. Heeren, after executing an Anton Piller order against the defendant and seizing a bunch of hard drives, Bell ExpressVu moved “for an order compelling the defendant to further review the contents of computer hard drives which are in his possession, control or power, and to again search for and identify relevant documents. In addition, the plaintiff seeks an order requiring Wilhelmus Heeren to deliver a further and better affidavit of documents.” Marrocco J. dismissed the motion in these terms:
[8] Rule 30.03(2) of the Rules of Civil Procedure provides that the affidavit of documents shall list and describe all documents relevant to any matter in issue in the action that are in a party’s “possession control or power…”. In this case, the respondent’s hard drives were seized under an Anton Piller order. They were imaged and the imaged hard drives were made available to the plaintiff. The plaintiff can have access to the imaged hard drives at any time. Therefore, it seems to me that the imaged hard drives are within the power, if not also the possession and control of the plaintiff. Therefore, pursuant to Rule 30.03(2), the plaintiff is obliged to review the documents on the imaged hard drives when preparing its affidavit of documents.
Zubulake RErevisited – Second thoughts about backup tapes?
Monday, February 8th, 2010As a follow-up to our previous post on Zubulake Revisited, judge Scheindlin amended her original order. Here is an overview of the main changes :
She replaced <While placing any burden at all on the innocent party to demonstrate the relevance of information that it can never review may seem unfair, the line has to be drawn somewhere lest litigation become a “gotcha” game rather than a full and fair opportunity to air the merits of a dispute.> with <If the spoliating party offers proof that there has been no prejudice, the innocent party, of course, may offer evidence to counter that proof. While requiring the innocent party to demonstrate the relevance of information that it can never review may seem unfair, the party seeking relief has some obligation to make a showing of relevance and eventually prejudice, lest litigation become a ”gotcha” game rather than a full and fair opportunity to air the merits of a dispute.>.
She added <I note that not every employee will require hands-on supervision from an attorney. However, attorney oversight of the process, including the ability to review, sample, or spot-check the collection efforts is important. The adequacy of each search must be evaluated on a case by case basis.>.
After <destroyed backup data potentially containing responsive documents of key players>, she added <that were not otherwise available>, thereby drawing the line between reasonably accessible and inaccessible documents based on the proportionality test. She then continued by adding a footnote stating:
A cautionary note with respect to backup tapes is warranted. I am not requiring that all backup tapes must be preserved. Rather, if such tapes are the sole source of relevant information (e.g., the active files of key players are no longer available), then such backup tapes should be segregated and preserved. When accessible data satisfies the requirement to search for and produce relevant information, there is no need to save or search backup tapes. See Fed. R. Civ. P. 26(b)(2)(B).
She further added <While routine searches of backup tapes are not required, they should be searched when it has been shown that relevant material existed but was not produced, or relevant material should have existed but was not produced. Because both conditions are met, Okabena is required to conduct this search or explain why it is unable to do so.>.
Interestingly, she replaced <Second, that 2M, Hunnicutt, Coronation, the Chagnon Plaintiffs, Bombardier Trusts, and the Bombardier Foundation were grossly negligent in their failure to preserve the evidence.> with <Second, that if relevant evidence was destroyed after the duty to preserve arose, the loss of such evidence would have been favorable to the Citco Defendants.> and added <This failure resulted from their gross negligence in performing their discovery obligations.>.
You should read all the Zubulake Revisited Amendment as this will likely be the last judgment in that case…
Hat Tip to WortzmanNickle.
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