Law Times

Law Times • June 25, 2012 Tips for preservation, production in e-discovery BRIEF: E-DISCOVERY I BY MICHAEL McKIERNAN Law Times n the electronic age, it's thought of as only an issue in large cases," says Susan Nickle, cofounder of e-discovery special- ist law firm Wortzman Nickle Professional Corp. "Lawyers would say, 'I don't do that kind of work, so I don't need to think about it.' But the reality is it' "E-discovery was originally every single case, even in family law and employment law cases, which are traditionally small- er compared with huge class actions. There' s in zation now with no electronically stored information." And whatever the size of the s almost no organi- case, the same pitfalls are lying in wait for the lawyers involved to topple into. Nickle' Wortzman, says the biggest traps come at opposite ends of the pro- cess: at the beginning with the pres- ervation of data; and at the end, when the information is ready for production. In between, there' s partner, Susan plenty of room for costly mistakes, but the potential damage to the cli- ent' doing document review and pro- cessing, mistakes can be recti- fied, s case isn't quite as high. "In the middle, when you're you want to avoid a do-over, but with preservation and produc- tion, there may not even be a do-over opportunity. If you don't preserve the data, it' " says Wortzman. "At all costs, devastating to a client where a mistake is made, and there' way to rectify it." PRESERVATION In general, Nickle says it' err on the side of caution during the preservation stage. "Our advice is to go broad s safest to on preservation, as long as rea- sonable, to make sure you're not destroying relevant information," she says. Barry Murphy, a cofounder s too late, it's out the door. It's s no increasingly difficult for law- yers to avoid the e-discovery process. tive with employees under a legal hold, espe- cially when the case drags on. "Make sure they're reading and acknowl- Wortzman says lawyers have to be proac- edging the notice. And if the case goes dor- mant, remind them again in six months that the preservation obligations are ongo- ing. When nothing happens for a while, they tend to go back to normal practice, so they need reminders." Another danger at the preservation stage comes when lawyers fail to look beyond mail- boxes in the search for relevant data. "It' e-mail because the employees may have infor- mation on shared servers, thumb drives, a home computer, s not enough to simply preserve the need to know where they all are, and for each employee, the way they store their information is different." "There may be 30 or 40 sources, so you " says Nickle. tion was on paper, there was no question that a lawyer wouldn't check it to make sure it' ments and is in the best inter- ests of your client," she says. "Lawyers are ultimately s meeting all the require- responsible for what goes out, so you want to make sure no privileged informa- tion is sneaking its way out among the properly pro- duced documents." Wortzman says an under- "Back when the produc- irrelevant information because the other side is going to complain," she says. The simplest way to limit the amount of irrel- evant information in your production is to engage in early planning and mean- ingful discussions with the opposing party, according to Nickle. "The earlier that' PRODUCTION Nickle says the production phase can be a chaotic time as parties scramble to meet tight deadlines and fulfil agreements on the format. Still, she says senior lawyers on a case need to take time to do a final check before turning over files to the opposing side. standing of the technology used in the processing phase is key when it comes to pro- duction. For example, some programs that appear to redact privileged passages on a screen may in fact lose the effect when saved in a form suitable for production. "It' in the set to make sure it matches up with what you thought was in there, Over-production is another trap many law- yers fall into, according to Wortzman. "You don't want to send out a bunch of s important to check what is actually " she says. 'Our advice is to go broad on preserva- tion, as long as reasonable, to make sure you're not destroying relevant information,' says Susan Nickle. the better. You can limit the scope and really focus on what records are going to be needed for the case, which allows you to contain costs for your client and meet all your professional obligations to them." That' Rules of Civil Procedure have made propor- tionality a key factor and discovery plans mandatory. "There' tant in Ontario, where the s particularly impor- who are just not doing it, even though it's mandated, and that's a real pitfall," says Nickle. s still a lot of lawyers in Ontario "I think we will see implications for that going forward in the case law. " LT s done, PAGE 13 s you send the wrong information, it' s gone, and if of eDiscovery Journal, says many lawyers fall at the first hurdle by failing to convert a legal hold into the actual preservation of data. The notice may go out to employees that they're under a legal hold, but sometimes there' no followup to make sure the data is being stored. " s these policies where they'll delete e-mail after 90 days if it doesn't get moved, A lot of companies have should be fairly simple to turn off that expiration process, but a lot of companies don't do it." In the United States, he says " says Murphy. "It What's your strategy when there's no paper? courts are clamping down on such failures by imposing spolia- tion sanctions on offenders who lost information despite notifying affected employees. Notification is the bare minimum requirement, according to Murphy. Paper covers rock. Scissors cut paper. And the right technology strategy eliminates the risk of being crushed. Wortzman Nickle has vast experience giving technical advice that can be vital to ensure your success. Our resident geek, Chuck Rothman, leads a team who will protect you in delivering a rock solid solution. Call us. We will show you how to take the guessing out of the game and win hands down. Managing virtually everything. For more information contact Chuck Rothman, crothman@wnpclaw.com 416-642-9018 or Susan Wortzman, swortzman@wnpclaw.com 416-642-9025. Untitled-1 1 www.lawtimesnews.com 12-06-18 2:01 PM

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