Law Times

Law Times • may 9, 2011 FOCUS How to prepare for e-discovery Lawyers need to know questions to ask when choosing software BY JANA SCHILDER For Law Times service vendors across North America. So when you need e-dis- T covery software, where do you start and how do you choose? Th e good news is that e-dis- covery software has improved a lot during the past two years in terms of both features and functionality. "What used to be special- ized functions are now com- monplace, for example, e- mail threading," says Crystal O'Donnell, a Toronto lawyer and consultant at Potter Farrel- ly & Associates, a fi rm that spe- cializes in consulting to courts and counsel about e-discovery, litigation management, and electronic court operations. So what's the bad news? "No one vendor provides a complete end-to-end solution for e-discovery, and they gen- erally use diff erent technology and processes," says O'Donnell, who notes the situation pre- vents a direct comparison. When it's time to talk to e-discovery vendors, what are some questions to ask so that you select the right software and vendor? "What e-discovery software to use is not the fi rst ques- tion. It's the last question," says Martin Felsky, a lawyer who provides legal expertise to large corporations and government organizations across Canada on matters of privacy, informa- tion security, and records man- agement law. Once you know your objectives, it's not hard to choose e-discovery software, Felsky notes. As a starting point, there are here are now dozens, if not hundreds, of e- discovery software and a few surveys of e-discovery soft- ware. One is produced for the American Bar Association. An- other is from the Gartner Group. "When you look at market share, there is just a handful e-discovery software that is in use," Felsky says. One important considera- tion for litigators, he notes, is to assemble a multidisciplinary team including an information technology expert and a para- legal or law clerk. He recommends lawyers attend a trade show such as LegalTech to familiarize them- selves with the vendors in the marketplace as well as get some idea of pricing. He also suggests getting demonstrations online. "Readiness, preparation, and how you use the e-discovery soft- ware are the keys to success, not the actual software you choose." Another important issue to ask about when picking soft- ware relates to Canadian tech- nical support because the vast majority of e-discovery software is American. Specifi cally, law- yers should fi nd out if there's dedicated Canadian assistance because they're going to need help with confi guration, train- ing, and other issues. "Th e fi rst decision you need to make is are you going to buy e-discovery software and bring it in-house or are you going to work with an e-discovery servi- ces vendor?" says Peg Duncan, an e-discovery consultant and former director of technology in litigation for the Depart- ment of Justice. She points out that bringing What e-discovery software to use is the last question, says Martin Felsky. software in-house entails buy- ing hardware, software instal- lation, and training, so there's a learning curve and perhaps a need for additional staffi ng. "Information technology is a broad fi eld, and e-discovery is a specialization," Duncan adds. "Even seasoned IT people have diffi culty fi guring it out. It can be daunting." O'Donnell off ers her sugges- tions for questions and issues lawyers might want to ask. She divides them into three groups. Th e fi rst group of questions has to do with the security of your information. If hosted by a vendor, where is the data go- ing to be physically? Who will have access to the data? If you'll be using a review team, what security controls can be placed on reviewer access? Th e second group of ques- tions relates to contractual issues with your e-discovery software vendor. You must ensure that ownership of the data stays with the corporation or law fi rm. At the same time, you need to make sure your e-discovery vendor complies with all relevant Can- adian privacy legislation. Th e third group of issues involves O'Donnell's criteria for best practices in e-discovery software. Included in her list are the following requirements: e-mail threading; de-duplica- tion; ability to import and ex- port in a wide range of standard formats; native review and pro- duction; ability to annotate on a review platform; redaction, including for production sets; the original metadata must be captured by the system; and the documents must be able to be reviewed and produced in na- tive format as more and more counsel are demanding it. In addition, Duncan brings up the concept of metrics, something that applies to the overall management of large cases so that problems are identifi ed and action taken. Collection software should tell how much information has been received from the diff er- ent custodians, date ranges, and types of sources and track that through the processes. At the same time, review software should track the rate of docu- ments reviewed per hour, the percentage deemed relevant or privileged by each reviewer, er- rors per document reviewed, as well as overall progress towards completion. "Always do a pilot on a small, non-critical case before making a major commitment to the software," Duncan says. In New York, the very large law fi rms do project manage- ment in-house and use e-dis- covery vendors for hosting, pro- cessing, and litigation support. "Lawyers don't have to be IT experts but lawyers do have to know how the e-discovery pro- cess works," says O'Donnell. "If you're not comfortable, hire a consultant to help you manage e-discovery litigation or partner with a service provider who has handled cases similar to yours," says Duncan. PAGE 9 ELECTRONIC DOCUMENTS RECORDS MANAGEMENT, E-DISCOVERY AND TRIAL Editors: Bryan Finlay Q.C., Marie-Andrée Vermette and Michael Statham With contributions from: Caroline Abela, Stephen Doak, Paul D. Guy, Nikiforos Iatrou, Stephanie L. Turnham, David Vitale and John Wilkinson EFFECTIVELY NAVIGATE THE LEGAL CHALLENGES POSED BY ELECTRONIC DOCUMENTS Electronic data is modifying how lawyers interact, changing how information is collected and used, and transforming the courtrooms. This in-depth resource examines and analyzes the issues relating to electronic documents, including: • • • • Looseleaf • $210 Subscription updates invoiced as issued (1/yr) P/C 0283030000 • ISSN 1920-1737 Prices subject to change without notice, to applicable taxes and shipping & handling. • the sources and types of electronic documents records management policies the legal framework governing e-discovery in Canada the preservation, collection, processing, review and production of electronic documents the use of electronic evidence at trial This dynamic and burgeoning aspect of legal practice is clarified and explained with extensive reference to relevant Canadian and U.S. authorities. 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• Cover
• LawPRO Warning
• Final Remarks
• Focus On E-Discovery