Mapping Out E-Discovery
Worried about the practicalities and pitfalls of electronic discovery? Here’s a five-point guide to help litigators navigate this treacherous new road.
By Heather Greenwood Davis (National - March 2009)
Mention “e-discovery” to a group of legal professionals and in most cases, you’ll be met with a mix of recognition and uncertainty. By now, most lawyers (and all litigators) know what electronic discovery is and why it’s important. But many are still unsure or even completely baffled by the practicalities of actually dealing with electronic evidence. They’ve got the “what” — it’s the “how to” that still presents challenges.
But e-discovery is here to stay, and that’s bad news for lawyers who aren’t ready for it, says Karen Groulx, a partner with Pallett Valo LLP in Mississauga, Ontario. “A lot of lawyers aren’t familiar with the guidelines or the Sedona principles,” says Groulx, who helped draft the Ontario Guidelines for E-Discovery. “They aren’t prepared for the volume of information or the time that is involved in the initial stages.”
At the Sedona Canada Conference held recently in Toronto, Groulx was one of several legal experts who discussed what must be done to ensure the successful implementation of e-discovery among the Canadian profession. National called on some of these experts to determine what practical steps you can take to manage e-discovery.
Their advice is surprisingly similar to what you would receive if you were preparing for a long road trip. Start with routes you already know well, borrow a map from someone who has already been there, look at it long before you’re lost, avoid the potholes, take the posted detours, bring along a navigator, and most importantly, never be afraid to stop and ask for directions.
1. FAMILIAR ROUTES
“I think one of the biggest misconceptions [about e-discovery] is that it is something new,” Groulx says. “While the medium might be new, we’re still dealing with the idea that we have records and we’ve dealt with records all along in commercial litigation. It’s a new medium of communication, but it’s still a written record of what has taken place.”
An overly broad pleading in the “paper world” might have meant only a few extra boxes of documents and a few extra hours in oral discovery. But the sheer volume of electronic information has changed the equation.
“Because of how vast the electronic data is, you can be dealing with terabytes and gigabytes of extra data,” says Kelly Friedman, a commercial litigation partner with Ogilvy Renault LLP in Toronto. “Essentially, you can be putting in the equivalent in the paper world of millions of extra documents which now have to be preserved, produced, and reviewed.”
Over-preservation – the erroneous belief that every electronic document must be preserved to comply with the law – is one of the costliest traps a litigator can fall into with e-discovery. “It’s the over-conservative attitude that comes from large sanctions being placed on American lawyers,” says Friedman, also a member of the Sedona Canada Working Group.
“Most Canadian companies are being encouraged by their external counsel to over-preserve, which really means [counsel is] nervous that they’re going to have destroyed something they ought to have saved.”
It’s the wrong approach, she says. “The more you preserve, the more you end up having to review, and the more you end up producing. It’s really because people are scared to make hard decisions at the beginning.” Instead, lawyers should do what they’re already doing with non-electronic records: use motions to strike and for particulars to knock out entire areas of discovery from the start and refine the pleadings.
Conversations with opposing counsel are equally as important. “A meet-and-confer can start with the [first] letter back,” says Friedman. “The letter back should be, ‘We’ve looked at your pleading. Really, what seems to be an issue in the litigation is A, B, C, D, E, and F. Based on that, what we are willing to do is the following. This is what we think is reasonable, and we’ll capture the data … that’s really relevant and necessary to this litigation. If you don’t agree with this, you better tell us now, because it’s not going to be preserved and you better agree to meet with us to negotiate what must be preserved.’”
2. Borrow A Map
In the United States, e-discovery has been a part of the litigation landscape for a long time. Jonathan Redgrave helped develop the initial Sedona Working Group. Since then, he has built an entire electronic discovery consultancy practice and founded his own three-city law firm – Redgrave, Daley, Ragan & Warner LLP – to house it.
Redgrave says time has changed American lawyers’ perceptions of e-discovery, and the same will happen in Canada. “It’s at a point where e-discovery is no longer viewed as some foreign concept. It’s simply a part of everyday practice,” he says.
“The benefit to Canada, I think, is that we have the opportunity to learn from a lot of [the U.S. profession’s] mistakes,” says Robert Deane, a litigation partner with Borden Ladner Gervais LLP in Vancouver and a member of the Steering Committee and Editorial Board for Sedona Canada.
3. Be Prepared
The best time to help your clients develop the systems necessary to make e-discovery efficient was yesterday, the experts say. The second-best time is right now.
“You get the, ‘Oh my God, we’ve got this litigation. I have no idea what documents are relevant, where they could possibly be, whether or not they’re archived and how they’re archived, and how we actually put in place a hold so that they don’t get destroyed’ reaction,” Friedman says. The result, often, is pandemonium: hold memos are sent to employees unversed in concepts like metadata preservation or legal relevance.
While crisis management is sometimes unavoidable, a proper plan developed ahead of time can change the way an actual crisis unfolds, says Deane. “It’s becoming an important part of our practice, to work with clients in advance of litigation. Hopefully, not after a bad experience with an e-discovery project, but [using] forward thinking to make sure the client has a litigation readiness plan … and has identified the key stakeholders in the organization who need to be part of the team.
“Organizations have policies and procedures in place to deal with other business risks. Litigation is just another of those business risks.”
A good plan will include a document retention and destruction policy that’s being followed, as well as a data map that outlines where and how data is stored, including servers. That’s why a good relationship with your IT people is essential, and why open communication with the client ahead of time is key.
"I think problems arise when counsel do not deal with ESI [electronically stored information] upfront at the outset of the matter,” adds Deane. “Immediately upon notice of a likely litigation, it’s important to sit down with you client and – hopefully, implement the litigation readiness plan that has already been developed, but if not – put that process in place right away.”
None of this will be free, notes Redgrave. “There is a cost associated with it, and in a down economy, a lot of people think that sounds like discretionary spending. They don’t want to do it. The problem is, in a rush situation, it ends of costing a lot more, and you don’t have the discretion to pay it.”
If pre-emptive action truly is unfeasible, consider and approach that will assist you beyond the current dilemma. “Look for ways to leverage that investigation across that case to other cases,” he suggests. “With respect to your internal processing, make sure it’s a collaborative effort that involves your records management, your information technology, and the legal function.”
4. GET BEHIND THE WHEEL
Avoid the temptation to simply shrug off e-discovery as a technical matter that should be wholly handled by litigation support staff or IT, says Redgrave.
“What’s striking to me, even today, is how many litigators think that this is something about litigation support, or it’s not as critical as it really is,” he says. Certainly, “good people supporting you to make sure that they can collect, retrieve, and produce information in the reliable, defensible, authentic way” is important. But nothing should trump the legal analysis.
That might mean having lawyers who can bridge any legal/IT language barriers. At McCarthy Tétrault’s Montreal office, for example, litigation partner David Gray has become the go-to guy for complex electronic document litigation.
You need to have an understanding of what the IT guys are thinking, and you need to be able to share what they lawyer is thinking,” Gray says. “People who have a good background in discovery tend to navigate both these worlds. I’m in no way an expert in IT, but I have a good enough understanding to know when flags are being raised, and to ask questions in a right enough manner to get those answers.”
But he warns that every member of the teams has to be on point. “It’s not something you do quickly and while doing something else on the phone. It’s an involved process. When you have a large-scale litigation and you have a client with many sources of electronic information that are potentially relevant, you need to … have an understanding of what’s out there, what format it’s in, and then you have to tackle that problem using different strategies.”
5. Keep An Eye Out For Detours
“The Ontario Rules of Civil Procedure are being amended,” says Friedman. “The rules committee has approved a change from the current test – ‘the semblance of relevance’ – to ‘direct relevance.’” If other jurisdictions follow suite, that could change everything countrywide.
“I think that for electronic discovery, it’s going to be absolutely fantastic,” she adds. “It’s not going to be a license for defendant corporations to say, ‘You’re entitled to a very narrow bad of information,’ but it’s going to help in the negotiation for what’s reasonable and what’s more focused.”
It’s a necessary change to protect against prohibitively expensive litigation costs that interfered with access to justice, adds Groulx. “The judiciary is increasingly aware of the fact that litigation is too expensive today. It is becoming beyond the reach of the average litigant. So as lawyers, we all have a duty to figure out what is really relevant.
“Do we need to produce 100,000 emails in a case? Maybe those 100,000 emails aren’t all that relevant to the issues. That is going to require a culture shift as well.”
Perhaps best of all for Canadian lawyers interested or perturbed by e-discovery is a coming International Survey on Electronic Discovery (www.sedonaconference.org) that will allow lawyers from around the world to weigh in on country-specific discussion forums on the topic. Friedman will act as Canadian editor.
The program could be a lifeline for Canadian lawyers stymied on the process, helping them by offering concrete advice and experiences from their colleagues. “It’s an opportunity to really blog about it, to discuss it, to ask questions of other people who are interested in the topic area,” says Friedman. There are plans to formalize the discussions into a published paper in the future.
By that time, there might just be an e-discovery road map the whole country can use.
3 myths, 3 must-dos for e-discovery
Myths
1. It’s prohibitively expensive.
“People think of dollar signs and crippling expenses, and that can be the case,” says Karen Groulx. “[But if] from the beginning you get appropriate assistance, it actually should be cheaper than it otherwise would be.”
2. It’s a young lawyer’s game.
“Some of our most adamant users of this stuff are the very senior partners,” says David Gray. “As a firm, we see this as an important skill set. It’s to our clients’ advantage. In that sense, we have to be able to do this.”
3. It’s a one-dimensional tool.
“It gives you certain advantages,” says Gray. “For instance, [the other side walks into discovery] with 15 boxes and you walk in with a computer that’s fully indexed, and you can search everything while they are testifying, pull it up, and then cross on the document live…. This is a repository of information that, even if you don’t have to give it to the other side, can be very useful.”
Must-dos
1. Contact opposing counsel early.
Deal with e-discovery issues early in the litigation — it’s only going to save time and money for both sides.
2. Plan ahead.
Sit down at the beginning of the case and think about the issues and what sources of information are relevant to those issues. “It’s really doing your homework as early as possible,” says Groulx. “We’ve all been there — lawyers are sitting in discovery, reading the documents at the time, and trying to figure out what’s relevant. We don’t do that anymore.”
3. Stay focused on the overall goal.
Look for ways to cooperate with the other side, within the bounds of advocacy, to make sure that discovery never becomes so big that it engulfs or surpasses what the case is all about.