Law Times

Law times • OctOber 6/13, 2008 PAGE 17 TECHNOLOGY FORUM Searching for a needle in a stack of needles "CRISIS LITIGATION: THE ROLE OF THE LAWYER" CONFERENCE Helping lawyers sort through e-discovery BY KELLY HARRIS Law Times side asks for relevant documents in both paper and electronic form. They include every e-mail, Word file, the contents of every laptop, web mail, and memory stick, cat- aloged and ready to read. There are data tapes, desktop computers with 80-gigabyte hard drives, backup CDs, enough pa- per to climb the CN Tower and back, all to find the five to 200 relevant pieces of information to the claim. Threats of e-discovery can leave all sides of a case to scratch their heads, bullied to settle or spend an eternity reading everything from that great meat- ball recipe from the potluck to LOL messages to business plans and everything in-between. Searching for a piece of evi- dence germane to a case can be like searching for a needle in a stack of needles, and completely derail any chance of finding justice. This has prompted the rise of a techno- savvy cottage industry seeking to help lawyers sort through the often massive undertakings. "One party is asking the other T he lawyers for two mid- sized companies enter into discovery on a claim, one party to go through this huge e- discovery exercise, collect every- thing, review everything," says Susan Wortzman of Wortzman Nickle Professional Corp. "It's ex- tremely expensive, it's almost hold- ing it over their heads, 'You got to go through this exercise, you got to pay thousands of dollars, why don't you just settle the claim?' There is that threat of expense of e-discovery in some cases." Susan Nickle, the other half of the Haystack," in the October edition of Canadian Lawyer In- House magazine, Lloyd Rosler, the Toronto-based vice president of e-discovery services at KPMG Forensic, a subsidiary of KPMG LLP, said long gone are the days of boxes of paper files. "When two sides are litigat- ing and they're asked to present documents, 98 per cent of docu- ments today are electronic," Ros- ler says. "It used to be you'd hand over 20 boxes [of paper], but now it's much more sophisticated and complicated, and the amount of data is tremendous." The Wortzman Nickle goal, when it comes to record manage- ment, is to provide legal advice to organizations in planning for future litigation. In the story "Whittling Down This can mean helping orga- nizations with record manage- ment, setting up systems that comply with e-discovery and corporate obligations, and assist- ing in drafting plans for proper document retention. When working with law firms, Susan Nickle, left and Susan Wortzman of Wortzman Nickle Pro- fessional Corp. are retained by law firms to assist at the discovery stage to manage the e-discovery portion. Wortzman Nickle uses electronic tools to narrow down the key problem of e-discovery — vol- ume. A company employing 20,000 people can see as many as two million e-mails a day pass through its server. Simply pair- ing the information down from a terabyte to a gigabyte may not be enough. And the volume prob- lem becomes a legal strategy to seek a settlement. Wortzman says before law- Wortzman Nickle, will be a pan- ellist discussing record manage- ment at the inaugural Canadian Law and Technology Forum to be held Nov. 17 to 18 at the Met- ro Toronto Convention Centre. The Wortzman Nickle Pro- fessional Corp. was created with the idea that they could help in-house counsel, but what they found were private firms strug- gling with the task of dealing with massive amounts of corre- spondence through e-discovery. "We are being retained by law firms to bring us in to assist at the discovery stage to manage the e-discovery portion, our en- tire practice is focused on that," Wortzman says. She adds that just 15 years ago discovery often meant only a box or two of information. To- day with the massive amounts of potential evidence lawyers can spend months, even years, sorting out what is important and what isn't. yers are faced with this issue they should have a proper game plan in place. By mapping out and agreeing to the ground rules early, lawyers can avoid the difficulties of dealing with an overwhelming amount of information. "Preparation work, if that's in place you can really mitigate time and cost, whether you are in arbi- tration or litigation," Nickle says. Of course if that doesn't comes very reasonable, comes to the table, and all of the sudden there is a real discussion, nego- tiation of what is relevant." One other key is adhering to the guidelines set out through the Sedona Canada Principles on e- discovery. According to their web site, Sedona Canada seeks to cre- ate forward-looking principles and best practices recommendations for lawyers, courts, businesses, "Suddenly the other side be- and others who regularly confront e-discovery issues in Canada. The first meeting of the Arbitration has traditionally been thought of as a way to ex- pedite claims and avoid the need for trial. E-discovery is changing all of that by injecting massive amounts of undertakings and bogging down the process, some- times grinding it to a halt, leav- ing claimants and respondents to ask, why not go to court? Tom Aldrich, senior consul- tant to the International Institute for Conflict Prevention and Res- olution and the former chief liti- gation counsel for Baxter Health Care in Deerfield, Ill., says that e-discovery has become a tool to break claims, rather than settle them. He says the undertakings become "a battle of wills between attorneys, bring to a standstill the process and it is used as a threat. "It's virtually emasculated the e-discovery working group was in May 2006 and earlier this year, they produced the Sedona Cana- da Principles in both English and French. The principles lay out the guidelines for e-discovery, including the acceptance that electronically stored information is discoverable and what cost obligations are on both parties. advantages which arbitration has historically had over litiga- tion," Aldrich says. "In the U.S., and we are beginning to see it in Europe as well, corporate defen- dants and plaintiffs are saying, 'If we are going to have to do all this we might as well be in court.'" The conflict prevention and resolution centre is looking to See Arbitration, page 18 e-discovery only one guide Canada's �irst law �irm exclusively focused on e-discovery. work, or arrangements were not made in advance, Wortzman has a couple of suggestions. "We are really advising cli- ents to say if you feel you are be- ing pushed to produce so much paper that is marginally relevant to the case what you should be doing is asking the court to shift a portion of those costs to the other party, then all of a sudden everyone seems quite reason- able," Wortzman says. "If you say to the other party, if you want us to produce every- thing it's going to take two years and . . . it's going to cost $1.5 million and it's going to be this huge process and we are happy to do that, but we want you to pay 50 per cent. Untitled-2 1www.lawtimesnews.com Susan Wortzman swortzman@wnpclaw.com 416.642.9025 Susan Nickle snickle@wnpclaw.com 416.642.9026 9/30/08 4:29:01 PM thousand millions of dollars 38,073,945,292 emails ter dss of hours erabytes of data

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