Law Times

Law Times • December 1, 2014 Page 9 www.lawtimesnews.com In-house counsel advised on e-discovery strategies Company lawyers need at least basic understanding of technology issues By arshy mann Law Times aving knowledge of electronic dis- covery issues is as indispensible for in-house counsel as it is for external lawyers. "When I left Wortzmans about a year ago, people said, 'Aren't you going to miss doing e-discovery?'" said Susan Nickle, formerly of Wortzman Nickle PC and now general coun- sel for the London Health Sciences Centre. "In fact, I probably do as much e-discovery as I did when I did it full time," said Nickle during remarks at the Ontario Bar Association's E-dis- covery Institute this fall. Nickle emphasized that in-house counsel have to have at least a basic understanding of e-discov- ery and the various technologies around it. "It's not sufficient to simply say, 'That's what we hire our external counsel for,'" she said. If lawyers wait to retain external counsel in reference to a claim, some of the documents and information necessary to respond to it may be missing. "Sometimes, external counsel aren't hired for a few months," said Nickle. "You could be in real trouble. There's got to be some internal accountability in the legal department to in- struct IT and to instruct some of the key custodians." Nickle recommended that if in-house lawyers don't feel comfortable with their knowledge of e-discovery, they should bring in an outside expert as soon as they can. "Get an expert in to help you right away if you're really a Luddite and no harm, no foul," she said. Kate Manning, a lawyer at Susan Wortzman PC, tells Law Times it's essential for in-house legal teams and outside counsel to hit the ground running when a claim comes up. "A big point for litigators now is you need to talk to your client early on and really learn more about your case sooner than you might have before," she says. "Talk to their IT department, find out what records are out there, find out where they're stored, find out what it means to get them back." In order to keep costs down, Nickle said it's essential to have an information management strategy in place from the beginning. "Get your records in order, hire a good records man- agement person, and it will really keep your sanity and keep your costs down from an organization perspec- tive," she said. Whether it's a litigation matter, regulatory investiga- tion or an audit, Nickle said the same principles apply. "It's the ability to get to critical business records when you need them in a manner that is time- and cost-effec- tive," she said. According to Nickle, information management is "really a team sport" that requires participation from a number of aspects of an organization. Christine Ardern, president of Information Manage- ment Specialists, agreed. "When we look at our information governance, what we're really seeing is that it's no longer OK for me as a re- cords manager or as an information manager to be try- ing to do this on my own," she said. Nickle said there's also a good business case for hav- ing an information records management system in place. She noted employees often spend many hours a week simply looking for the right in- formation. "The key again is back to business reasons. You're not going to manage your records solely on the fear that you're about to get a statement of claim through the door," she said. While in the past it was common practice for in-house legal departments to preserve as many documents as they could, Nickle said the exponential increase in the volume of elec- tronic information means that's no longer the best practice. "We're getting rid of nothing; that's the problem," she said. Instead, Nickle advised that if an orga- nization has a good records management system in place, it's a good idea to dispose of business records at the end of their use- ful life as long as it has complied with limita- tion periods and regulatory requirements. "We keep everything for 20 years or 25 years because people think that's an easier way to manage their records," she said. But if there's a lawsuit, said Nickle, and the other side wants 10 years of records, an organi- zation can argue that's an unreasonably broad date range. Unless a court agrees, however, it'll likely have to produce the documents. If those documents were deleted through an estab- lished information management framework, however, Nickle said that would be a suitable defence for why it couldn't produce them. However, if the company simply can't find the docu- ments, the courts will be less forgiving. "Courts have made some very strong statements around the need for organizations to have a handle on their records and it will not be a defence to a production request that you simply can't find something or that it's going to be difficult," she said. Having a good information governance system in place can also help protect against claims of privacy breaches in industries that hold sensitive customer data. "It's a much cleaner response when you can say, 'We know where the information was, we are confident that it was not accessed or the people who accessed it had the right to be in there,'" said Nickle. LT Companies will have an easier time explaining why they can't produce a document if they have an information management system in place. Photo: Nomad_Soul / Shutterstock Focus on E-Discovery H By arshy mann Law Times hile many lawyers still as- sociate electronic discov- ery with large-scale com- mercial files, the truth is it's important in all forms of litigation. "The bottom line is that now pretty much everything is electronic and if you are ignoring e-evidence in your case, you probably are ignoring a significant per- centage of the documents that will speak to the merits of your case," said Susan Nickle, general counsel for the London Health Sciences Centre, at a panel on e- discovery at the Ontario Bar Association's E-discovery Institute. Nickle pointed to the Superior Court of Ontario decision in Palmerston Grain, A Partnership v. Royal Bank of Canada, in which Justice Alissa Mitchell stated that litigants must comply with the Sedona Canada principles. "So that automatically means that if you litigate in Ontario, you do e-discov- ery," she said. "There are e-discovery considerations in every file. It's just a matter of degree and scope." In health law, Nickle said the ongoing shift away from paper records and towards electronic records has brought e-discovery to the forefront. There are a number of major efforts un- derway in Ontario, such as ConnectingG- TA, that will link hospitals, labs, and other health-care organizations so they can eas- ily access electronic patient records. "So as counsel, you have to be aware of that as a source of information," said Nick- le. "And there's going to be complexities because all of these systems are being fun- nelled together but they may not all store information in the same way." According to Nickle, that means lawyers involved in medical litigation will have to think broadly about where information comes from and is stored. "You're going to have to think about where else that patient may have been and what other doctors they may have seen and in what context and how those doctors store their information," she said. Electronic medical records can also be more useful than paper ones because of the metadata they carry. "Now instead of the paper chart where the nurses and the physicians and other allied health professionals are charting in paper format or dictating notes, you can actually go and see when notes were made, which can often be rel- evant," she said. In addition, metadata can help law- yers determine who made a note. "There have been some cases where the person purported as making the en- try wasn't actually that individual," she said. Despite the cultural shift towards electronic records, paper isn't going away completely any time soon. "I can tell you that a lot of physicians' organizations are clinging with both hands, desperately grasping onto the old ways," said Nickle. There are also often regulatory re- quirements that mandate organizations hold onto paper records. "For example, in Saskatchewan there's a requirement that all records be kept in paper and for 20 years," she said. "So from a litigation perspective, that's a bit of a nightmare." But the proliferation of electronic re- cords also presents some of its own chal- lenges. "We're seeing a huge increase in pri- vacy breach because it's so easy to access W E-discovery key to all forms of litigation See Family, page 10

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