If you litigate civil claims in Ontario and do not yet have a quality means of processing electronically stored information, your time may soon run out. This post describes why, explains what processing of electronically stored information is about and links to some key resources.
I’d like to deal with terminology first, because "processing" is an ambiguous term in e-discovery. It is often used in a narrow sense, to describe the process of manipulating paper or electronic records so they can be read by litigation support software. I use it here in a broader sense, to describe the process of identifying and extracting large and poorly-understood collections of data from where they live in IT systems and working them down to smaller, well-understood and ready-to-produce data sets. Used this way, "processing" is the meat in the e-discovery sandwich. It comes after working with your client to develop an understanding of its record management system and information flows, after you work with your client to help it implement a reasonable litigation hold and before you produce and present electronically stored information.
Processing electronically stored information is an important topic to consider given the "new Ontario Rules" come into force on January 1, 2010. The pending changes to the Rules are not about e-discovery alone, but will have a significant impact on how parties deal with electronically stored information. Rule 29.1.03 will require parties to agree to a discovery plan after consulting and having regard to The Sedona Canada Principles Addressing Electronic Discovery. This express duty to consider electronic discovery will apply in every case. Ignoring e-discovery will no longer be an option, and processing electronically stored information will be required in more and more files.
More e-discovery means lawyers and their firms will need to quickly develop a number of critical competencies. If you are ready for January 1st, you will:
- have a just-in-time means of collecting electronically stored information in a forensically sound manner,
- be able to skillfully use appropriate and cost effective search and retrieval and data analysis technology and
- be able to systematically manage trained and competent review teams.
You will also have a system for processing electronically stored information well and for getting better at processing electronically stored information file by file.
Developing these competencies is not easy. While The Sedona Canada Principles themselves are written for the bench and bar and built on broad and technology-neutral concepts, processing electronically stored information is detailed and technology-dependent work. Collaboration with vendors is required, which means communication and other vendor management challenges. Vendor pricing models are not intuitive enough, making quick budgeting difficult for those who are not running e-discovery files day-in and day-out.
Processing electronically stored information also raises a difficult staffing issue. Every litigator ought to understand The Sedona Canada Principles, ought to become fully engaged in the process of identifying and preserving electronically stored information and ought to be able to have an informed discussion about processing with opposing counsel. But can we really expect every litigator to understand the detailed science and technology of search and retrieval and keep tabs on vendors and their ever-changing offerings? At the same time, processing challenges are too linked to the demands of litigation and the dialogue with opposing counsel to make someone “outside the tent” accountable for processing. This dynamic means there is a legitimate role for specialist e-discovery counsel, but should lawyers and their firms build, buy or borrow to fill this role?
To help you think about some of these challenges, I’ve included a list of some recent podcasts and leading resources on processing electronically stored information below. Have I missed something good? Please comment and let us know!
Recent podcasts on processing ESI
- ESI Bytes Podcast with Jason Baron, Beyond Key Word Searching in Electronic Discovery
- ESI Bytes Podcast with Hon. Paul Grimm and Tim Opsitnick, Search and Retrieval Tips from the Bench
- ESI Bytes Podcast with Hon. John Facciola and Meghan O'Donnell, Innovative Ways to Approach Privilege Logs
Leading papers and articles on processing ESI
- The Sedona Conference Commentary on Achieving Quality in the E-Discovery Process
- The Sedona Conference Best Practices Commentary on Search and Retrieval Methods
- George Paul and Jason Baron, Information Inflation: Can the Legal System Adapt?
- Craig Ball, Surefire Steps to Splendid Search
- Elizabeth Timkovich and Meghan O'Donnell, Alternative Privilege Log Techniques in an E-Discovery World