Law Times

PAGE 8 An online resource 1.800.263.3269 Focus On E-DISCOVERY E-discovery grows as digital information spreads BY JANA SCHILDER For Law Times has already been recorded digitally B as you go from the underground parking lot into elevators equipped with cameras and then use pass-card systems to enter the offi ce before logging on to your computer. Digital information is everywhere. Th at's the problem, in fact. Devices monitor and record data. At the same time, there has been an ex- plosion of applications: Fa- cebook, Myspace, Twitter, Groupon, LinkedIn, Plaxo, and Foursquare. Our new reality is that 99 per cent of information is created and stored electronically. Th e downside is the rather vex- ing problem of volume. "In fact, social network- ing is so widespread that some experts in the indus- try, such as Joel Patrick Schroeder, have predicted that social media will replace e-mail as the primary vehicle for interpersonal communica- tions for 20 per cent of business users by 2014," says Karen Groulx, a partner at Pallett Valo LLP. For lawyers, their clients, and the courts, the problem of volume manifests itself very clearly in e-discovery. "E-discovery is not diff erent, it's just discovery. Rules of relevance still apply. It's the sources of in- formation that are all diff erent," says Peg Duncan, an e-discovery consultant and former director of technology in litigation for the Department of Justice. In the meantime, the government has amended the Rules of Civil Procedure to address electronically stored infor- mation through mandatory e-discovery plans and a new proportionality rule. Th e proportionality rule says that in any proceeding, the parties should en- sure that steps taken in the discovery process are proportionate by taking into account the nature and scope of the liti- gation and including the importance and complexity of the issues as well as the interests and amounts at stake. Th e principle also notes the process should consider the relevance of the avail- able electronically stored information; its importance to the court's adjudication in a given case; and the costs, burden, and delay imposed on the parties to deal with it. But 18 months later, how has e-discovery changed the lives of lawyers and the courts? What new issues have cropped up as a result? Proportionality and e-discovery plans y the time you arrive at work each day, in- formation about you is the metadata relevant to their case?" Th ere are other issues as well. "Th e big advantage of e-discovery is not fi nding the proverbial needle in a haystack faster," says Felsky. "It's getting rid of the hay- stacks altogether." With proportional- 'Metadata is the hardest thing to understand about e-discovery,' says Kelly Friedman. E-DISCOVERY CAN INVOLVE: • E-mail • Address books • Twitter • Instant messages • Building/parking entry • Calls to and from smartphones • Every draft of a document created on a computer • The date of and computer used to create every document change • Documents circulated as attachments • Documents with track changes • Printed documents with hand notations have meant major cultural change in the legal profession on a number of fronts. One of the key problems relates to edu- cation and communication among law- yers, law clerks, information technology staff , and e-discovery software vendors. "If we can't get law clerks to communi- cate with their own litigators because the litigators don't understand even basic e- discovery terminology, how are we going to communicate with the opposing side to craft an e-discovery agreement?" asks Kelly Friedman, a partner at Davis LLP and chairwoman of Sedona Canada's steering committee. Martin Felsky, a lawyer who provides legal expertise to large corporations and government organizations across Can- ada on matters of privacy, information security, and records management law, points out that only a handful of prac- titioners understand e-discovery. "Law- yers have a deep understanding of paper and fi le folders," says Felsky, adding that a number of lawyers still print out dis- covery documents, have them scanned, categorize them chronologically, and put them into binders. "Th at's not e- discovery — it's paper emulation." "Lawyers don't really understand what is behind documents, e-mail, and web pages," Felsky notes, referring to the struc- ture, content, and metadata of electronic- ally created and stored information. "Metadata is the hardest thing to understand about e-discovery," says Friedman. "But litigators need to know if they need to see the metadata, how can they make use of metadata, do they need to produce metadata, and www.lawtimesnews.com ity rules, e-discovery will come up even in the small- est wrongful dismissal, discrimination or harass- ment cases. In those cir- cumstances, lawyers who understand proportional- ity may decide there are only 20 relevant e-mails, copy them to a disk while preserving the metadata, and produce just those. For bigger cases, lawyers on both sides need to agree to an e-discovery plan. Th is is another huge cultural change in at least two as- pects. First, counsel on both sides must collaborate on such a plan. But as lawyers are trained to argue and be adversarial, collaboration is virgin territory. "Th e instinct and training of lawyers is that they are entitled to full discovery, not the limited discovery imposed by the proportionality rule," says Felsky. On major litigation, it can take a year or longer for both sides to come to agreement on the e-discovery plan. Some lawyers are concerned about giv- ing away too much of their litigation strategy while hammering out the plan. Th e other cultural change lawyers need to adapt to is the limits imposed by the proportionality rule. In many cases, it's cost-prohibitive, if not impossible, to uncover and produce every potentially relevant document. As a result, parties and their counsel need to adapt to the cultural change from empha- sizing all potentially relevant information to only what's truly necessary to the reso- lution of the confl ict, Groulx says. Duncan echoes that sentiment. "Do- ing a good analysis of your case will tell you what information will be important to your litigation," she says. What are the key facts? What and where are the sources of information? Who are the key players or custodians of that infor- mation? What are the key time frames? Who else might have that information? Th ose are some of the key questions. One way to think of e-discovery is the confl uence of three rivers: law, in- formation technology, and records management. Since the digital age is here to stay, lawyers will need to learn how to navigate the new waters and go with the fl ow. may 9, 2011 • Law Times Photo: Jana Schilder

• Cover
• LawPRO Warning
• Final Remarks
• Focus On E-Discovery