Archive for 2010

How many steps in the ladder of legal hold defensibility?

Friday, July 30th, 2010

According to the title of John J. Isaza, Esq. and John Jablonski, Esq. new book on legal holds which is available at ARMA Bookstore: 7

7 Steps for Legal Holds of ESI and Other Documents is described as a practical book, an “how-to guide describing step-by-step a best practice process for identifying trigger events and implementing a litigation hold. It provides a straightforward description of why the law requires preservation, the scope of preservation, and practical tips on how to preserve records in an acceptable manner.”

The book covers topics such as:

  • What Is a Legal Hold?
  • Different Types of Holds
  • Preservation Orders
  • Legally Defensible Process
  • Difficult Legal Hold Issues
  • Assessing Readiness
  • Identifying Trigger Events
  • Statutory or Regulatory Obligations to Preserve
  • Duty Arising from Potential or Threatened Litigation or Investigation
  • Duty Created by Preservation Letters from Opposing Counsel or Agency
  • Duty Arising from Service of a Complaint, Civil Discovery Statutes, Discovery Requests, and Court Orders
  • Legal Hold Scoping
  • Legal Hold Implementation Methodology
  • Legal Hold Enforcement
  • Lifting a Legal Hold

This legal hold bible also includes a self-analysis checklist, a flow chart describing the process for implementing a litigation hold and case law citations supporting this best practices process.

EDRM announces its new White Paper Series – and its first White Paper on selection criteria in discovery

Friday, July 23rd, 2010

The Electronic Discovery Reference Model (EDRM), a must-see resource on many aspects of e-discovery, announces its new White Paper Series, in which it offers the views and opinions of experts in the domain. These white papers are evaluated prior to publication and are available for free. The first White Paper, by Gene Eames, David J. Kessler and Andrea L. D’Ambra, focuses on how best to select proper criteria during the discovery process, and makes the case for an iterative approach. In face of ever increasing amounts of data to search in, this approach comes as an answer to the dilemma of, on one hand, containing discovery costs and, on the other hand, demonstrating the use of a defensible discovery process, the goal of which being that no relevant material should remains unfound. It refers to the Sedona guidelines, stating that automated search tools results should be assessed, measured and documented, eventually requiring an iterative process. The documentation should be done bearing in mind that it may serve to demonstrate, with empirical evidence, that a search term is under- or over- inclusive – or both. In sum, the core of the iterative approach

“By testing the data (both what is selected and what is not selected), one can mitigate the risk of systematically missing data and create documentation regarding the reasonableness of the process, while at the same time reduce the amount of money wasted on processing and reviewing irrelevant documents.”

Its pertinence flows from the understanding that discovery is a global process, and that while costs can be shift further away, it may be cost efficient to shift them in the first steps of the process: the iterative approach to selection criteria may well be such an example. EDRM-2-573

The core of the iterative approach is that, “By testing the data (both what is selected and what is not selected), one can mitigate the risk of systematically missing data and create documentation regarding the reasonableness of the process, while at the same time reduce the amount of money wasted on processing and reviewing irrelevant documents.”

Fundamental rights and Information technologies

Friday, July 9th, 2010

In a small article published on  The Gazette’s website, titled The delicate issue of law and technology, the undersigned comments a recent decision in criminal law by the Quebec’s Court of appeal .

Two main issues are identified. The first one: how should the plain-view doctrine be construed in the case of electronic documents search and seizures ? The second: how should we mediate, one one hand, the right of an accused not to be compelled to participate in self-incrimination, with, on the other hand, the arrival of ever more powerful and efficient cryptographic tools that can be used to conceal incriminating evidence?

If one can’t answer these questions, he may at least try to formulate them!

Canadian Lawyer Magazine has two articles on e-discovery

Monday, June 28th, 2010

The June 2010 issues of Canadian Lawyer and its sister-publication In-House each has an article about e-discovery. The Canadian Lawyer’s article by Gerry Blackwell, is the second and last part of the “e-Discovery – Are you in or out?” series about the question facing Canadian law firms as to whether insource or outsource e-discovery processes (the current issue is not online yet). The article is based on a quick case study of Bell Canada’s insourcing of all phases of the E-Discovery Reference Model (EDRM). Bell may decide whether to perform all these phases internally or outsource the later parts, depending on many business factors. The whole system, software and hardware, paid for itself in a year and is back by a multidisciplinary team of legal, IT and Information Security. Dominic Jaar, quoted in the article, stresses that the first step – information management – is a “crucial pre-requisite for economical e-discovery” that can only be taken internally. He noted that the cost argument is pretty straightforward: “There are huge costs involved in piling up data, even though we’re told storage is cheap and getting cheaper. Yes, the hardware is cheap, but the indirect costs are high”. Indeed, data management isn’t free, neither e-discovery data processing, nor losing a lawsuit because a silver bullet was found in documents one didn’t need to preserve… The In House article The e-discovery shift is based on a first e-discovery roundtable featuring Justice Colin L. Campbell, of the Ontario Superior Court of Justice,  Alan D’Silva of Stikeman Elliott, Kelly Friedman of Ogilvy Renault and chairwoman of Sedona Canada, Laurie MacFarlane of CIBC Legal Department and Melanie Schweizer of Bell Canada. Many topics were discussed: proportionality, personal information, cross-border issues, and document-retention policies, among others. Reading as a transcript of an open discussion between experts putting ideas to debate, some excerpts are great food for thought. Two of them come to mind. On the importance of a data-retention policy, Melanie Scheizer underlines that companies should be able to :

“[show that steps have been taken] to audit the policy and measure compliance. It’s not just a piece of paper that nobody has read. Document retention is becoming more important because of the links between that policy and the cost containment issues on e-discovery. So when you can make a business case how it is going to save the company money to have a very efficient document retention policy, there may be some more resources thrown at that issue than in the past where it was a nice thing to do but what is the benefit in doing that.”

On the cultural shift need to migrate from crisis mode to planning mode, Justice Cambell shares his thoughts on how discovery law in Canada must develop differently than in the United States :

“I think the one thing that Canadian lawyers are attuned to is our obligation to reduce relevant documents, whereas in the U.S., their rule is you only produce what you are asked for. And I think that is what drives a lot of their confrontation… So the big knock on what we’re all doing is, are we destroying civil litigation? We have invented industries to take care of the growing amount of information that is available. It does have to be controlled and tamed, and I think I go back where Melanie started, with the meet and confer, changing the culture right at the beginning, so people don’t feel that it is so adversarial. […] Big task, but hopefully we’ll get there.”

Ledjit employees recognised as Leading E-Discovery Experts

Thursday, June 3rd, 2010

LawdayLawday lists many of Ledjit’s employees as leading experts in e-discovery. While we’re quite please with this listing, we’re uncertain about how it has been put together: Most of the other companies have administrative staff listed as opposed to their strategic and delivery people…

BP’s protective order

Saturday, May 29th, 2010

burning-oil-rig-explosion-fireTalk about a preservation obligation!!

1. The Defendants, Transocean Offshore Deepwater Drilling, Inc., Deepwater Horizon, BP Products North America, Inc., Halliburton Energy Services, Cameron International Corporation d/b/a Cameron Systems Corporation and MI SWACO, through their officers, agents, employees, and subcontractors, are ordered:
(a) To reasonably refrain and resist from any changing, alteration and/or destruction of any documents pertaining to the April 20, 2010 explosion or subsequent efforts expended in connection with such event, including all infonnation stored, held or maintained in electronic format or via the internet; and to take immediate action to prevent the automatic andlor systematic programmed deletion or discarding of such documents.
(b) To reasonably refrain and resist from any changing, alteration and/or destruction of any and all tools, instrumentalitics, and/or devices which may have been used by workers, in any capacity, as well as any work authorizations or other documents indicating status of work at the time of the event in question as well as any and all physical evidence of any kind in any way connected with the accident and/or accident scene in question.

Read all the protective order [PDF].

How will they preserve the oil and the fire?!

New decision on e-discovery and email production

Friday, May 28th, 2010

The Supreme court of Newfoundland and Labrador (trial division)  recently rendered a decision regarding the discovery of emails and their production. The case is GRI Simulations Inc. v. Oceaneering International Inc., 2010 NLTD 85 (CanLII). In this case, the defendant Oceaneering filed an application for relief of email production. Its main basis are that it is 1) very time consuming, 2) expensive in time and disbursements and 3) disproportionately expensive in relation to the benefit to be obtained (¶2). In support of these, it cites, among other authorities, the Sedona Canada Principles. Citing the same Principles, the plaintiff GRI is of the opinion that the burden has to be assumed by Oceaneering, and that the cost issue is to be addressed by taxation, at the conclusion of the litigation (¶66). Justice Hoegg first restated the principle that “neither the fact that email is a convenient form of communication nor the fact that it is electronically stored relieve a litigant from his or her obligation to produce it” (¶27). Regarding discovery of such emails and the arguments of Oceaneering, he notes that:

” a “costs, time and effort” argument involving email is the same as when hard copy documents are in issue. For example, the cost, time and effort to produce hard copy documents which are disorganized or stored in various places could also be considerable. Such an argument may or may not prevail in this or any other case because there is cost, time and effort associated with all document production. In any event, it does not appear to me that searching email archives for producible documents is inherently more onerous or expensive than conducting manual searches for hard copies of documents.”[¶28]

The question now becomes one of proportionality between the costs incurred by Oceaneering and the usefulness of the documents to be found. The judge concludes that “[i]t is for the receiving party, in this case GRI, to do so. A receiving party knows its case and is in a better position to assess whether a document aids its position.”[¶34] In the proportionality analysis, aside from the 8M$ claim, it is also important to note that the counterclaim by Oceaneering weighted against them in its attempt to limit document production – Oceaneering must lie in its self-made bed… This decision underlines – if need still be – the need for a comprehensive approach to e-discovery and a global readiness in that matter so as not to have to run to the court to catch one’s metaphorical breath – it may not work and you’ll still have to run.

GRI Simulations Inc. v. Oceaneering International Inc., 2010 NLTD 85 (CanLII)

New Online E-discovery courses for legal professionals

Wednesday, May 26th, 2010

The Center for Advanced Legal Studies, along with the Organization of Legal Professionals, offers eDiscovery @ Work: 8-week of online, interactive courses (two classes a week) designed to teach e-Discovery from beginning to end, in a comprehensive way. Three new courses have been added: eDiscovery 101A: Fundamentals of eDiscovery, eDiscovery, The Next Level and eDiscovery for Non-Legal Professionals. This training is aimed at all people working in the legal, litigation or IT spheres, administrators and any person interested in obtaining a full understanding of e-Discovery. Covered topics include: ESI, Cloud Computing, EDRM, Collection Strategies, New Rules of Federal Procedure, Preserving Accessible & Inaccessible ESI, Duty to Disclose, Litigation Holds, Inadvertent Disclosure, Duty to Preserve, Discovery & Daubert, International eDiscovery, Depositions Under Rule 30, Where to Find Metadata, Case Studies, Rules 16 & 26, Ethical Considerations, The Sedona Principles, and Early Case Assessment. More information

Dragging one’s feet on e-discovery: Walking on a thin line

Friday, May 21st, 2010

In Canreal Management and Corp. v. Mercedes-Benz Canada Inc., the main question was about the existence of a contract between the defendant and the plaintiff, a real estate services company. Were there to be a contract, the defendant would owe the plaintiff a commission of nearly half a million dollars on its real estate transaction with a third party.

This decision is on a plaintiff’s motion for an order to strike out the defendant’s appearance or, alternatively, its statement of defense. The net result would be akin to a default judgment for the plaintiff. The plaintiff alleges that the defendant showed deliberately obstrusive and grossly negligent and failed to search of withheld documents. In his response, the defendant alleges, on the basis of a representative affidavit, that its research is still going on with its IT department best efforts, yielding new results that are forwarded to the plaintiff. Meanwhile, the plaintiff examined a former employee of the defendant who gave indications in contradiction with the defendant’s representative’s affidavit .

Although the Court is of the opinion that “the material before [it] does not support the plaintiff’s suggestion that the defendant has been guilty of deliberate misconduct or that it has attempted to conceal relevant documents”, it finds “that the defendant’s efforts to identify and produce relevant documents have been neither as thorough nor as timely as required, given the nature and circumstances of this case”[¶24].

The Court also note that:

“the defendant has not provided sufficient explanation for the dilatory and piecemeal document production that has taken place in the face of repeated demands. At the very least, the most recent document production calls into question the thoroughness of the searches previously deposed to and requires some explanation of how these documents could have been missed, as well as some assurance that whatever was defective in those previous searches has now been rectified.”

On the remedy prompted by these remarks, the Court denied the conclusions sought by the plaintiff, saying it would be too draconian and would deny the defendant a potentially meritorious defense. The prejudice of the plaintiff would better be compensated by cross-examination of the affiant and further examinations on discovery of the defendant’s representatives, the costs of which to be borne by the defendant. This is an approach consistent with BC’s Court of Appeal’s decision in Muscroft v. Euroceptor, where the Court noted that “in those situations where one side must drag the documents out of another, it does not always follow that the recalcitrant litigant should have his, her or its statement of defence struck out.”