Rose Royce —ã¢â‚¬â€ Rose Royce Iii Strikes Again!

When is a document not just a document? Well, equally most litigators know, when it's (among other things) a sound recording, videotape, database, or other piece of information that finds itself in electronic form.

How to care for this electronic information in the context of litigation has been the goad for much debate and deliberation. Consider this: a large corporation tin can generate and receive millions of due east-mails and electronic files each 24-hour interval. Electronic documents are easily duplicated and tin can be sent — inadvertently or voluntarily — to any number of recipients and are more than difficult to dispose of than paper documents, in that, fifty-fifty once they're deleted, information can remain on a storage device until it's overwritten by new data.

More and more, it'south these "documents" that are being requested and produced at the discovery stage of litigation, where in the past merely paper documents had been exchanged.

Nigh Read

They're at the cadre of e-discovery: a phenomenon that is speedily changing the way litigation is conducted in Canada, the basis of which is quite only that electronically stored data is discoverable. This ways that every employee email, every web site and instant message, every Word document, Excel spreadsheet, and company database tin can be drawn into the discovery procedure.

And for in-house counsel, e-discovery presents a unique gear up of challenges that starts light years before a claim is even issued or a litigation hold-letter received. It starts with the onerous and seemingly unfulfilling prospect of creating a certificate retention policy — and developing the infrastructure to make certain people follow it. But where to brainstorm?

Released earlier this year, the Sedona Canada Principles Addressing Electronic Discovery provides a clearly worded, unadulterated guide to understanding the fundamentals of e-discovery in Canada. Its 12 principles have into account issues such as the proportionality of the request for electronic data in relation to the nature of the claim, costs, burden, and delay; the responsibility on counsel to confer on an ongoing basis equally to the preservation, drove, review, and production of electronically stored information; and the belch of responsibility in having to search for or collect deleted or residual electronically stored information.

The report is consummate with commentary, example law, and definitions, and can aid even the technological neophyte empathise the principles of electronic documents, what'south expected of counsel and clients regarding their retention and disclosure during the discovery process, and how due east-documents are different from their paper counterparts.

Past all accounts it's a neat springboard into the word around internal policy on electronically stored data.

"The principles are very unproblematic. They fit on one sheet," says Glenn Smith, partner of the Toronto litigation firm Lenczner Slaght Royce Smith Griffin LLP and founding fellow member of Working Group 7.

"Anyone can read them, and yous can learn something from information technology if you're technologically sophisticated or if y'all've never thought about electronic data before in your whole life."

In May 2006, a small group of lawyers, judges, and technologists met at Mont Tremblant, Que. to embark on the "process of dialogue to grapple with the phenomenon of 'electronic discovery.'" Calling themselves the Sedona Conference Working Grouping 7, "Sedona Canada" formed out of the growing recognition that the discovery of electronically stored information could no longer be seen as a peculiarity of litigation in the U.S.

Working from the perspective that east-discovery was quickly becoming a factor in all Canadian civil litigation, and non only a function of circuitous commercial lawsuits, the group set out to produce some guiding principles that would be universally acceptable in addressing the disclosure and discovery of electronically stored data in Canadian ceremonious litigation.

After much consultation and consideration, this first edition of the Sedona Canada Principles was released. At present the attempt shifts to educating people nigh what it'southward all near and how it can help lawyers and their clients deal with the oft-overwhelming feel of e-discovery.

"One unfortunate way to brainwash people nigh e-discovery is to have them involved in the e-discovery process. After that, they sympathize why they need to continue their inbox clean," said Dominic Jaar, counsel for Bell Canada. He says the Sedona Canada Principles will give in-business firm counsel a context or a goal to reach that volition help build a company's infrastructure around information management, but that it needs to exist approached in three parts: policy, infrastructure, and educational activity.

"One cannot go without the other," says Jaar. "In gild to have effective e-discovery and protect metadata, yous need a map of your whole Information technology infrastructure."

Taking stock of a company'due south inventory of laptops, desktops, PDAs, and software can be a thankless and prolonged job, but Jaar says it'southward the only place to outset. "Obviously the easiest way to get direction to accept it seriously is to get sued," he says, merely that'due south not the best mode.

He says that after taking stock of the infrastructure, an umbrella policy should be created, under which there are policies on document memory, deletion, internet apply, and education, for instance. The Sedona Canada Principles can guide the evolution of these policies by explaining what will be required, technologically speaking, in the outcome of litigation in general, and e-discovery specifically.

Martin Felsky agrees.

"This written report should be a very helpful and useful document for in-firm counsel," he says. "It's not the answer to all of your questions but information technology is a very adept road map."

Felsky is the CEO of Commonwealth Legal Inc., a company offer trial training and presentation services that includes eastward-discovery consulting. Companies similar Democracy Legal can electronically capture all east-mail files and hundreds of other file formats from computer hard drives, servers, back-upward tapes, CD-ROMs, and floppy disks.

And so they offer the service of taking the raw data and culling it through various search engines, to exist assembled in a database and hosted on the web and then that lawyers, clients, and experts tin review the documents for relevance and privilege.

By way of case, Felsky relates the story of one client, a large company in Canada involved in a regulatory investigation here and in the U.S., while also facing a potential class action suit. "The in-house and outside counsel knew they had to practise something with their electronic data to make sure they preserved their dorsum-up tapes and server data," says Felsky. "Later discussions with the vice president of IT in the U.S., it looked like nosotros have two terabytes of fill-in data, plus active server information." (A terabyte is ane trillion bytes and, in terms of text, can make full a stack of newspaper nigh fifty km high.)

Felsky says Commonwealth Legal would employ the Sedona Canada Principles to help decide a plan of activity for the example. The principles allow for a document-searching technique known equally sampling, which Felsky used to choose some nine million documents down to 11,000 earlier handing it over to the lawyers, who were so able to winnow information technology downwardly to 1,100 in no time.

Robert Castonguay echoes this sentiment. Having spent twenty years with the computer forensics unit of the RCMP in Quebec Urban center, he learned about electronic documents before the term "eastward-discovery" had been coined.
In 2003, he left the RCMP and is at present vice president of KPMG Forensic and head of infrastructure and production for e-discovery services in Montreal. He and his team recently completed a client project, paring down 1.5 terabytes of data to 500 gigabytes for the legal team to review. He shares Jaar's view that being without an east-discovery plan "is a take chances-management disaster waiting to happen."

Castonguay says that in-business firm counsel play an important part in the company when it comes to electronic information. "They're the ones who are involved beginning," he says.

Sought out by the directors, these are the people who need to sympathise electronic data and how to handle it. Every bit far as the costs associated with implementing policies and educating employees, he is convinced any form action or complex litigation instance will undoubtedly exceed them and that information technology'south best to be proactive.
The Sedona Canada Principles, Castonguay says, are a great place to start. He concludes that "ÃÆ'¢Ë†Å¡ÃÆ'‚¢ÃÆ'¢â‚¬Å¡ÃÆ'Æ'‡ÃÆ'‚¨ÃÆ'‚¬ÃÆ'‚¶yous just can't say, 'I'll write upwardly an east-discovery plan' when you're faced with a litigation agree-letter." IH

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Source: https://www.canadianlawyermag.com/news/general/guiding-principles-for-e-discovery/267332

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