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The age of e-discovery Lawyers face daunting challenges in sifting through mountains of e-documents

By Donalee Moulton
May 01 2009 issue

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In a virtual world, discovery becomes e-discovery. The new legal landscape, however, is not a mirror image of the old way of working.

Indeed, it is fraught with challenges.

One reason for those challenges: practice has not changed with the times.

“What we’ve had are traditional rules about discovery being applied to electronic documents. It simply hasn’t worked well,” said Kelly Friedman, a partner with Ogilvy Renault LLP in Toronto.

One reason for the disconnect, she noted, is volume. “You’ve had this real data explosion and that affects discovery.”

Part of the reason for sticking to the tried-and-true methods is comfort. “There are many, many lawyers who find the whole electronic arena foreign to them,” said Tracy Mettimano, a paralegal with the legal resource services department at Fraser Milner Casgrain LLP in Calgary.

Indeed, said Friedman, “lawyers have to have a certain amount of technical expertise.”

As well as common sense. In an e-environment, for example, accessing every document may simply not be feasible — or necessary. “In the world of electronic data, it is extremely difficult to get your hands on every piece of data that was created, and even if you could, it’s often not reasonable from a cost point of view,” said Friedman.

Those costs are exponential. In North America, it is estimated that spending on technology for e-discovery alone will jump from $1.4 billion in 2006 to nearly $5 billion in 2011. The driving factor: lack of choice.

In an electronic age, 90 percent of documents are no longer printed on paper. And there is a plethora of such documents. Worldwide more than 60 billion e-mails are sent each day, and one hard drive alone can hold up to 40 million pages. For lawyers, finding their way through the morass can be time-consuming, costly and even damaging to their case.

The onus is on the legal professional to figure out what material is necessary and where it might actually reside. “In the past,” said Mettimano, “we used to just leave it up to our clients.”

Having clients identify material is no longer viable — and one of the many challenges facing lawyers in an age of e-discovery. “What a lot of lawyers don’t think of is that there is a lot of technology out there that could hold information,” said Mettimano.

That search is often haphazard and, as a result, lawyers could miss relevant information, noted Friedman. “The potential for data to go into nooks and crannies in electronic documents is exponentially greater than with paper.”

The courts, however, are working to make sure that doesn’t happen, she added. “The courts are being more sophisticated. You need to have a plan as to how you will identify relevant information and how you will search for it. Then you present that to the court.”

As a first essential step in the process, said Mettimano, lawyers need to send out litigation hold letters to preserve information because in an e-age information can change simply by looking at it. Metadata, such as the sent and received date, for instance, is encoded in electronic documents like e-mails, but it is not static, it is dynamic.

“With electronic documents, if a client goes in to find out if a document is relevant, then the save date changes. In some cases, that date is crucial,” said Friedman.

“Historically,” she added, “people have said, ‘Give me all your e-mails.’ If those are forwarded, it presents problems.”

Many of those problems are currently being addressed. The Sedona Conference, a U.S.-based nonprofit legal and policy think tank, first developed e-discovery guidelines in the United States. Then Sedona Canada, an offshoot of the U.S. conference, developed its own e-discovery principles in 2007.

One of those is proportionality. “You have to look at expense, time and burden versus probative value,” noted Friedman.
Judges in Canada have started to apply this principle, she said, and the Ontario rules of procedure are incorporating it, effective next year.

Another important principle is direct relevance.

“Our obligation is to produce documents that are directly relevant,” said Friedman. “This has always been the case but the bench and lawyers got carried away by [the word] ‘semblance.’”

Without this principle in force, she added, justice will elude many Canadians. “Ordinary litigants can’t afford to produce everything. It becomes an access to justice issue.”

Much of what is happening in Canada with respect to e-discovery development mirrors advances, and issues, arising in the U.S. “We’re behind the United States in terms of the amount of e-discovery we do,” said Mettimano. “It’s good in a way. We can learn from their mistakes.”

There is much to learn, especially as e-discovery issues head to court for judicial resolution. According to the most recent analysis of reported electronic discovery opinions and cases in the U.S. from technology firm Kroll Ontrack Inc., the dominant topics last year were the importance of creating and enforcing sound document-retention policies, the use of proper search terms for production and the consequences when parties fail to properly comply with discovery requests.

Of the approximately 138 reported electronic discovery opinions issued in the U.S. in the first 10 months of last year, more than half addressed court-ordered sanctions, data production and preservation and spoliation issues. “It is clear that courts are no longer allowing parties to plead ignorance when it comes to [electronically stored information, or ESI] best practices,” Michele Lange, director of legal technologies for Kroll Ontrack said in a press release.

“These cases,” she added, “exemplify that judges can and will hand out sanctions for mishandling ESI and lack of document-retention policies.”
After all, it’s a brave new virtual world.

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