Law Times

Law Times • December 7, 2015 Page 11 www.lawtimesnews.com Controlling costs critical Building a solid e-discovery strategy a must BY YAMRI TADDESE Law Times he explosion of data, and the cost of re- viewing it, means companies cannot afford to wait until they're hit with litigation to create a strategy for how they'll con- duct e-discovery. Lawyers and e-discovery experts recently offered best practice tips on how to tackle a request for e-discovery while putting a handle on costs. Speaking at the annual On- tario e-Discovery Institute 2015, the experts talked about everything from creating the right e-discovery team to how using "common sense" helps companies meet their due dili- gence more efficiently. Here are seven pointers for building an e-discovery strategy: 1. Do the initial legwork: "You can waste a lot of time in e-discovery by running before you start to walk," said Anne Glover, partner and leader of the e-discovery and document management team at Blake Cas- sels & Graydon LLP. "What you want to do is first identify what kind of docu- ments you might need to collect, try to find the people who can tell you where they might be, [and] for how long they're kept," Glover said. She suggested making calls to the company's IT department to find out how the system is set up, where documents are saved, and to get a sense of how hard it would be to pull out those documents. At this stage, you will want to know if the company uses external vendors to host its data, Glover said. "We're finding more and more clients are using the cloud to host e-mails. What that means for the e-discovery process is that if you need to pull any doc- uments from the cloud, it can sometimes take up to a month to get a request into the pro- vider and get the documents," she said. "If you're in a very tight timeline, it's better to know that from the get-go before you agree to a certain deadline." 2. Develop a work plan Laurie Macfarlane, senior coun- sel at CIBC, said it's important for her to focus on and control the cost of the e-discovery pro- cess. She said that as a client she wants to make sure the docu- ments that are being preserved and reviewed are actually neces- sary. When developing a work plan, try to sort out what issues the parties agree and disagree on, and determine where e-dis- covery fits into that, Macfarlane added. For example, Macfarlane said, she's seen cases where e- mails were not important at all, in some cases they were very im- portant, and in others it wasn't clear whether they were impor- tant. She, therefore, wants to know it's necessary to preserve and review e-mails instead of assuming that it is. With some exceptions, or- ganizations facing lawsuits al- ready know what the dispute is about, Macfarlane said, adding that relevant information could be found in places such as client care or customer resolution de- partments. Ronald Podolny, class action litigator at Siskinds LLP, said his firm investigates the organiza- tions it's about to launch a law- suit against to understand who works there and what type of documents they would have. 3. Build an e-discovery team Once it's clear there will be an e-discovery, you'll need to create a team that will see the project through its completion. When it comes to building a team, "One size does not fit all, but there are certain types of lawyers you will need on the team," Podolny said. Those lawyers include a se- nior counsellor who can lead the project and an associate or junior partner who is closely connected to the documents and knows the witnesses, ac- cording to Podolny. But "the most important thing is that you need a lawyer who is an e-discovery special- ist on your team," he added. "E-discovery has become a sub- speciality and you will rarely find a litigator who is proficient enough on the technology that they can speak intelligently about collections and data for- mats, and so on." 4. Establish a legal hold When you first get a claim, you may have little knowledge about the case, but that's when you're expected to ensure that any in- formation that could be relevant to the case is being preserved, Macfarlane said. "So how do you do that? I'm a big advocate for com- munication versus guessing," she said, adding that you should speak to opposing counsel about exactly what should be preserved instead of making assumptions. As a lawyer, she's wor- ried about spoliation claims, Macfarlane said, "because then the case isn't about what happened, the facts, or who is right and who is wrong. It [becomes] about the fact that [I], as the lawyer, didn't take the steps to make sure that the information was available." Companies should send notices to custodians to in- form them of their obligation to preserve relevant records and advise them to let your company know if anyone else has those relevant records. Mac- farlane suggests that you define exactly what you mean by "re- cords" and clarify any misun- derstandings. 5. Meet and confer Meet regularly with your e-dis- covery team, including clients, to discuss the project, and come to the meeting with your e-dis- covery plan, suggests Podolny. At these meetings, a major area of discussion is identifying search terms that will be used for the e-discovery, Podolny said. "On the one hand, plaintiffs should have some [words] that they have prepared, but the de- fence has a role in helping refine them because it's the defence that knows the cast of characters [and] code names for projects," he added, noting that a more pointed, refined search is in the best interests of everyone in- volved to reduce the cost of the review process. At the meeting, Podolny also suggests you also talk about the types of data you need, and whether you actually need metadata, how you're going to produce the required data, and under what timelines, he said. Belinda Burnett, manager of litigation support at McCarthy Tétrault LLP, said you shouldn't forget to discuss the technical details around how you're going to exchange data and in what format. 6. Collect information Once the right information is gathered, figure out how you're going to store and share it. If you're going to suggest hosting the documents with a third- party vendor, be prepared to explain why this is necessary instead of using good, old USB drives to share files with other parties, Macfarlane said. "Use common sense," she said, instead of "using technol- ogy for technology's sake." 7. Insource v. outsource Decide whether you're going to do the review in-house or ship the work out to an external team. Your decision will depend on the volume and complexity of the work as well as your time- line, said Burnett. If you outsource the work, keep an open line of commu- nication with the external team and correct any misunderstand- ings as they arise, she added. If you decide to do the work in-house, ask yourself if you can use technology to make the vol- ume more manageable, Burnett said. When it comes to choosing the right technology, "you really have to do your homework," she continued. "Talk to people who maybe have used some of these tools before to see what might be right for you, right for the case." LT FOCUS Economical, Professional, Bilingual. Involved in Settlement of Personal Injury and all other kinds of Civil Litigation matters in all jurisdictions in Canada and the United States. Mediation, Arbitration, Advisory Services (T) 416 606 4844 (E) james.regani@hotmail.com 504-10 Old Mill Trail Toronto, Canada. M8X 2Y9 James F. Regan, OCT egan_LT_Dec7_15.indd 1 2015-12-02 10:16 AM T 'One size does not fit all, but there are certain types of lawyers you will need on the team,' says Ronald Podolny. STAY CONNECTED TO YOUR LEGAL COMMUNITY British Columbia's vast legal community is right at your fingertips with the 2016 British Columbia Legal Telephone Directory. You get instant access to more than 11,000 lawyers and law offices spanning British Columbia, Northwest Territories, Nunavut and Yukon. 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