Indeed, with this acquisition, KPMG becomes Canada’s first firm offering all of the Electronic Discovery Reference Model (EDRM), expanding on the services in which the firm is already a recognized leader. Ledjit’s client base, including a variety of multi-national corporations, will benefit from KPMG’s depth and breadth of Advisory knowledge and skills.

A summary of our service offer is available on KPMG’s website.

See the complete press release of the announcement.

This information is not always useful, but Dominic Jaar clearly states that not looking at them amounts to negligence: “Looking at metadata isn’t just legal: it’s an ethical obligation for lawyers to look at metadata from opposing counsel.” This 20-year old “issue” has yet to get prime-time visibility and it will only come by way of a big case involving metadata. As such, it falls within the competence duty of every lawyer : scrub metadata of documents you are sending to opposing counsel (except evidential documents, of course) and check for metadata in received files.

The article also addresses the (lack of clear) ethical guidelines, in Canada as well as in the United States.

Metadata : not only a funny word !

• Learn how to overcome the issues surrounding the litigation hold process.
• Hear successful methods for bringing the e-discovery process in-house.
• Find out how to get your legal team and IT department to working together to execute a defensible process.
• Learn how to automate the collection process, which will not only reduce your costs, but will also reduce your legal risk.
• Find out how to utilize e-mail archiving as a complement to your e-discovery efforts.

That’s the idea put forth by Ted Claypoole in an interview by Nymity: “Geo-location privacy is based on the concept that everyone has a right to be anonymous in their location at some points in their life. […] Many of our most basic human rights are grounded in privacy and anonymity.” For instance, for freedom of assembly “to be effective, a person must be able to meet with others in private, avoiding tracking and surveillance.”

The subject is topical. It could not be addressed 200 years ago by the framers of the United States Constitution, for it was quite easy to achieve anonymity. With the recent opening of the GPS system to civilian applications and its integration in cars and cellphones, the paradigm is shifted. In fact, the trend is so powerful that “If we do not start asking questions now about rights to privacy in location, technology may make those questions moot.”

On an positive note, however, Claypoole note that while it may be too late in the United States to recognize location privacy as a basic human right, Canada and European Union have already done so.

The issue of geo-location was also the object of a New York Times article titled “Judges Divided Over Rising GPS Surveillance“. The core of the divide is explained by the necessary shift courts must make regarding privacy:

“Some legal scholars say the escalating use of such high-tech techniques for enhancing traditional police activities is eroding the pragmatic considerations that used to limit how far a law-enforcement official could intrude on people’s privacy without court oversight. They have called for a fundamental rethinking of how to apply Fourth Amendment privacy rights in the 21st century.”

Accompanying any shift of this sort is a period of uncertainty: the US Court of Appeal recently “overturned a drug trafficking conviction because the evidence against the defendant included tracking data from a GPS receiver that the police hid under his sport utility vehicle without a warrant”, noting the fundamental differences between tracking someone 24/7 at almost no cost and classic surveillance in public areas. Judge Richard Posner, however, argued to the contrary: “The Fourth Amendment “cannot sensibly be read to mean that police shall be no more efficient in the 21st century than they were in the 18th”.

Posted from Ledjit’s office, located 550 Sherbrooke West, Montreal (45.505678N, 73.571592W or so).

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Mr. Thorpe identifies 4 strategies to approach foreign language documents review:

• Asking client to provide staff for foreign language document review and translation support
• Using MT (machine translation) to Translate All of the Documents
  • Post edited MT
• Abstracts
• Human Translation

While I am a big fan of asking employees to find the relevant documents, as we use to do in the paper age, even if some courts (with which I beg to differ) are now saying it is inappropriate, it is often unrealistic to use clients’ employees to search and review documents for relevancy. This is particularly the case when dealing with higher management and specialized employees or professionals given their limited availabilities and the relative cost of having them performed what is often seen as more clerical work.

To me, the only way to ensure a defendable document review is to outsource it to bi- and multilingual reviewers who are fluent in English and can perform the review of English documents to get a good understanding of the case and the nature of the documents. They can then most efficiently complete the review of the documents in the other languages while ensuring a standard of quality in the overall review. These reviewers can normally be found for almost the same price as the English only reviewers and sometimes even for less, depending on the jurisdiction.

For instance, in Quebec, most lawyers are bilingual (English and French) and a large number speak a third or forth language, e.g. Spanish, Italian, Portuguese, German, Hebrew, Arabic, Mandarin, Russian, etc.   While Quebec is a civil law jurisdiction, many lawyers are also common lawyers since most universities now offer what is known as a National program where you receive and LL.B in civil and common law. The cost of these reviewers is normally between $50 and $125 depending on the year of call, the jurisdiction(s) in which the lawyers are called, their experience and the number of languages they speak.

With respect to the use of MT, except when there is a clear case for proportionality, I have no confidence whatsoever in the technology. It is far from being ready for prime time. I must admit of using the BabelFish and Google Translate of this world to get a sense of what a Chinese website says but I would never rely on anything similar for document review in the course of a litigation or investigation. In fact, I don’t understand how that approach can be defended while, at the other extreme, some judges state that key words must be defined by experts… How can a machine properly translate slang, idiomatic expression, internal codes used by employees, etc.? How can it pick up on the subtlety of a language and differentiate humor and sarcasm?

Furthermore and perhaps most importantly, that approach requires a translation of all documents, including irrelevant ones, plus a review of all of them, thereby generating unacceptable costs and delays. The same arguments apply to abstract and translation.

Sadly enough the OLP does not allow its readers to comment, hence this post.

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!

” 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.