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.

Ledjit minds the gap. And bridges it!

Symantec recently released the results of its 2010 Information Management Health Check Survey. The survey reached the legal and IT management departments of 1680 enterprises in 26 countries. It sought to identify the best (and worst) practices in the field. One hundred Canadian companies took part in the exercise.

Unfortunately, the results reveal that Canadian companies suffer a serious gap. On a worldwide basis, 87% of the participants were aware that a proper information retention plan will help them delete unnecessary information, but only 46% do have such a retention plan. Costs and responsibility attribution are cited by both IT and legal departments as the main reasons why no plan is put in place. Further reasons identified, by IT, are the lack of a need for a plan and, by legal, the lack of expertise.

This gap is even wider – one of the largest, according to the study – in Canada. Although a similar proportion of the companies (80%) recognized the utility of an information retention plan, only 15% had a plan in place (yep, in bold and italics!). While the first figure is, in a sense, reassuring, the gap between those who took action and those who haven’t yet means only one thing: the next step is stepping in. The other findings of the study (PDF) relating to over-retention, improper legal hold, backup, recovery and archive practices all point in the direction of a set of consequences:

“First, high storage costs. Studies show that storage costs continue to skyrocket as over retention has created an environment where it is now 1,500 times more expensive to review data than it is to store it. And it is not just the raw cost of tape stock and hard disks, but the higher costs of managing such massive stores.

Second, backup windows are bursting at the seams. It is becoming increasingly common to hear of weekend backups taking more than a single weekend. Recovery times are even worse. The time it takes to restore such massive backups will bring any disaster recovery program to its knees.

Finally, with the massive amounts of information stored on difficult-to-access backup tapes, eDiscovery has become a lengthy, inefficient and costly exercise.”

While these consequences are serious, so are the short-to-middle-terms benefits of the remedy.

It would be a missed opportunity not to remind you that Ledjit is Bridging the gap between IT and the law!

Dominic was responsible for the Canadian section of the “Practical management of electronic evidence” chapter. The various stages of E-discovery are explained from a bijuridictional point of view: preservation of evidence, litigation hold letter, data gathering, review, etc… The technological aspects of e-discovery are also given good consideration and thorough explanations: metadata, indexation, OCR, deduplication, deNISTing…

The complete reference is Stephen Mason (ed.), Electronic Evidence, 2^nd ed. (Lexis Nexis: Markham, 2010); ISBN: 978-1405749121; Lexis Nexis; WorldCat.

Dominic Jaar also comments on the changing role of lawyers: in order to be as efficient as their clients will expect them to be, they will have to master technologies. He gives the example of document reviewing, currently done in a linear fashion. With proper use of the adequate technologies and methods, such an operation will be made a lot quicker and involve less legal staff. He concludes saying,

“that really means understanding the technology and not only understanding the process of e-discovery, which is what we see in the market right now. Lawyers know the Sedona Principles, they know what they need to do next but they don’t know how to do it. So that’s a set of skills I think needs to be developed in the Canadian market.”

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.

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.

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!