I've been updating the case law digest and the reading list in a process that resembles renovation, in that it is messy, you uncover a lot of broken material, and it takes twice as long as it should but the results are satisfying.

Both the case law digest and the reading list were neglected for about a year. I had been accumulating links in my bookmarks with the idea that some time soon I’d get around to doing something about it – and when I did, there were hundreds of links to sort through, discard, hunt down and write brief summaries for. So, here’s where we are.

The eDiscovery Case Law Digest – what’s NEW.

The digest was updated in two stages, the first time back in March and more recently earlier this month. New sections have been added to cover pleading practices, discovery planning, the application of the proportionality principle, discovery of social media and other internet sources, and admissibility and authentication of electronic evidence. Newly added decision summaries include deep links into the paragraphs in the decision dealing with the issue.

The eDiscovery Reading List – what’s NEW

Like the case law digest, the reading list has been through two updates. The current version is dated May 2^nd and has been weeded of all broken links and older material. Some new links were added, as well as whole new sections on Social Networks and Discovery and Cloud Computing. The latest version, which is with LawPRO for loading onto the practicePRO website, contains all the new links as well as a whole new section on Authenticating Electronic Information.

As anyone who follows e-discovery knows, new material is published daily on the internet. For the most part, the material on the Reading List comes from courts, law societies and bar associations, law review journals, The Sedona Conference®, government agencies like NARA, legal technology industry analysts (Gartner, IDC, etc.), judicial committees, EDRM, ABA Law Practice Management and similar sources.

The Curator is on Twitter and will tweet new links as they appear, with the best being added to the list.

eDiscovery is subject to trends, like fashion or the latest iPhone application. The newest trend climbing the charts is project management, so I thought it was timely to write about project planning before all the cool kids go sit at another table.

Now, I've had some experience with project planning in my time, and what I've learned is that no plan survives contact with (fill in the blank). Some have even used this as an excuse NOT to plan, since the estimates will always be off, targets will be missed and you'll spend all your time explaining why. However, this misses the point, since the object of the exercise is to figure out what you know, and more importantly, what you don't know.

If this is beginning to sound like the gibberish you'd get in Wonderland, pause for a moment and reflect on this: if you know what you don't know, you can build in extra time and resources as a contingency. If you know what you don't know, you can make it a priority to go looking for information to fill in the blank and firm up your estimates.

Some things to consider in drafting the plan:

• Scope of the information to be collected, processed, reviewed and produced, and any decisions about staging production
• Structure of the project team for each of the main activities (collection, processing…), including description of skills required
• Resourcing – internal resources combined with external contracts, and their availability
• Budget for external resources, services and tools
• Roles and responsibilities of the members of the team
• Governance – who makes decisions about scope, budget, resources and timeframes
• Assumptions (e.g. volumes expected from sources, rates of collection, processing and review, availability of internal resources, time required for tool acquisition, among others)
• Risks (e.g. new allegations or defences added to pleadings, unexpected problems with degraded or encrypted media or files) that could threaten delivery of the project within budget and schedule, and mitigation strategies
• Documentation to be developed – such as coding and processing manuals, instructions for review for relevance and privilege, etc.
• Work breakdown structure of the tasks, their dependencies, who is assigned to each and the schedule
• Quality control – processes used to ensure integrity and completeness, and conformance with scope for collection and processing, and compliance with instructions for review.
• Communications, including progress reporting, exception reporting, and problem tracking and resolution.

In an alternate universe where the Internet was invented in the 16^th century, Hamlet alleged corruption in the court at Elsinore, and pinpointed Claudius and Polonius as key custodians. He identified two critical periods – the two months before the death of his father, King Hamlet, on September 6, 1601, and the period just after his web broadcast of The Mousetrap, on Twelfth Night, 1602. Instant messages were retrieved forensically (if surreptitiously) from Claudius’ iPhone and Polonius’ BlackBerry, and their regular e-mail accounts were extracted from the server.

After viewing the statistics on Polonius' email, Hamlet realized he could eliminate Polonius from suspicion. Polonius had only rare and courtly communications with Claudius, with the remainder of his e-mails offering long-winded advice to his two teenage kids. Turning to Claudius’ e-mails, Hamlet uncovered communications in August 1601 with Voldemand and Cornelius, intermediaries with Fortinbras of Norway. This email exchange was significant for the political developments between Denmark and Norway but did not appear relevant to the death of King Hamlet, nor unexpected since King Hamlet had delegated diplomacy to his brother. Hamlet was outraged by the volume of sexting between his mother and his uncle, and only moderately relieved to find that it had started just a few weeks before Claudius and Gertrude’s wedding.

The analytics uncovered a surprising volume of email from Claudius to two of Hamlet’s childhood friends, Rosencrantz and Guildenstern. It appeared Claudius had asked R&G to spy on him, and the most recent messages were encrypted. Deeply suspicious, Hamlet enlisted his trusted friend, Horatio, who sidelined in forensic investigation, to run a password cracking program. “Cl@udiu$_No1” turned out to be the encryption key. Reading the text en clair, Horatio was horrified to learn that Claudius had arranged for Rosencrantz and Guildenstern to deliver a coded message requesting the King of England to kill Hamlet. Horatio replaced the coded message with one requesting the deaths of R&G.

Unfortunately, Hamlet did not continue his covert retrieval of Claudius’ e-mails. Had he done so, he might have seen the exchange with Laertes that resulted in the duel with the poisoned sword.

Postscript: Fortinbras accomplished his hostile takeover of Denmark and carried out due diligence in merging the e-mail systems of Denmark and Norway. He used analytics to determine which messages needed to be kept and which could be destroyed, and to suppress all duplicates. Regrettably, we have been left with no examples of 16^th century sexting.

Electronic Evidence in Canada 
by Graham Underwood and Jonathan Penner
published by Carswell 2010-1-30
price: $120.00
ISBN: 978-0-7798-2263-8

“A helpful reference for those dealing with issues arising from the production and use of ESI in litigation process.”

In the preface to the book, Penner and Underwood point out that guidance about the admissibility of electronic evidence is currently lacking in Canada and set out to remedy this situation with an commendable textbook on the nature of electronically stored information (ESI), its management both before litigation and once litigation commences, and its admissibility as real, documentary and demonstrative evidence.

 Government lawyers and corporate counsel will appreciate the sections on the management of ESI from a lawyer’s perspective. There are excellent sources on information and records management in the marketplace, but these tend to be written by people in the information management and technology area: this book covers the fundamentals from a lawyer’s perspective and training. I did appreciate the inclusion of the different types of metadata (system, substantive and embedded) since these terms are often inconsistently explained and frequently muddled.

 The treatment of the disclosure of electronic information should also interest investigative agencies designing systems that capture and store information gathered during investigations, since they must anticipate not only the needs of their staff but also those of the Crown and the defence.

 Although the discovery and production of ESI have been covered in other texts as well as in The Sedona Canada Principles Addressing Electronic Discovery, the last part on admissibility presents the issues and challenges for what may be the first time. It’s aimed at lawyers and judges and delivers the order and analytic rigour promised in the preface. I would have welcomed more illustrations using different types of ESI in different situations to help explain the concepts.

 It’s not often that a book review will enthuse about the Table of Contents and the overall organization of the text, but I found them very good for helping to locate information on specific topics. This is what you want and expect in reference text, but too often don’t get. There’s a well-organized index at the back organized more by legal concepts than by occurrence of the word, and a Table of Cases in the front.

 Jonathan Penner and Graham Underwood are counsel at the British Columbia Ministry of Attorney General and both well-seasoned litigators.

• Buy Recommendation:
• Who should buy? Courts, litigators, inside counsel at large corporations and government agencies, prosecution and defence counsel, counsel advising police forces and agencies with police powers
• Better Buys: None
• Websites: None
• New Media Rating: -

Last week, David Cheifetz collected the salient paragraphs of the SCC's decision on R. v. Morelli (2010 SCC 8) in a post here on Slaw, but only limited discussion followed. The dissent, though, has some interesting observations that deserve highlighting, such as this one from paragraph 144:

In light of the inevitability of technological change, it is important not to needlessly handcuff the courts to a concept of possession that is limited to certain technologies or to current-day computer practices. Control has been the defining feature of possession, not the possibility of finding data files on a hard drive. To adopt downloading as the threshold criterion would be to take a formalistic approach rather than drawing a principled distinction between access and possession. The classical approach to possession, rooted in control, therefore remains the most reliable one. It is the one that is most readily adapted to technological developments and it will not require courts to hear detailed forensic evidence of technological advances on an ongoing basis just to keep up with the times.

It seems the majority missed the point that in order to create the shortcut in Favourites, the user typically (and almost without exception) must first click on the link and access the webpage. That requires intent – it’s not a passive process. And I agree with the dissent that you don’t need to have physical custody of the disk that hosts the webpage to have possession and control. You can forward the link to others (thus distributing the images), print it, save it locally, resize it – whatever.

The majority appears to assume that you can’t distribute the images unless you have physical copies, as you would with videotape or film or photographs – but that’s not the case with the internet.

The Federal Court encountered a related problem in eBay Canada Limited v. Canada (National Revenue), where it was asked to review an order to divulge information about Canadian eBay "PowerSellers", information that is stored on US servers but available and accessible to eBay Canada. The Court observed:

[23] The issue as to the reach of section 231.2 when information, though stored electronically outside Canada, is available to and used by those in Canada, must be approached from the point of view of the realities of today’s world. Such information cannot truly be said to “reside” only in one place or be “owned” by only one person. The reality is that the information is readily and instantaneously available to those within the group of eBay entities in a variety of places. It is irrelevant where the electronically-stored information is located or who as among those entities, if any, by agreement or otherwise asserts “ownership” of the information. It is “both here and there” to use the words of Justice Binnie in Society of Composers, Authors and Music Publishers of Canada v. Canadian Ass’n of Internet Providers, 2004 SCC 45 (CanLII), [2004] 2 S.C.R. 427 at paragraph 59.

Upon appeal from the decision enforcing the order based on fact that the information was "foreign-based", the Federal Court of Appeal stated:

[47] The scheme of section 231.6 suggests that Parliament was concerned that it could be unduly onerous for a person to be required to produce material located outside Canada and in the possession of another person, and that the section may operate in an unduly extraterritorial manner. While these concerns may be taken into account on a review by a judge for unreasonableness, they are largely irrelevant to the information (bulky as it may be) that is the subject of the requirement in the present case.

[48] This is because, with the click of a mouse, the appellants make the information appear on the screens on their desks in Toronto and Vancouver, or anywhere else in Canada. It is as easily accessible as documents in their filing cabinets in their Canadian offices. Hence, it makes no sense in my view to insist that information stored on servers outside Canada is as a matter of law located outside Canada for the purpose of section 231.6 because it has not been downloaded. Who, after all, goes to the site of servers in order to read the information stored on them?

In R. v. Salituro ([1991] 3 S.C.R. 654), Justice Iacobucci wrote:

….this Court has signalled its willingness to adapt and develop common law rules to reflect changing circumstances in society at large. In four recent cases,… this Court has laid down guidelines for the exercise of the power to develop the common law. The common theme of these cases is that, while complex changes to the law with uncertain ramifications should be left to the legislature, the courts can and should make incremental changes to the common law to bring legal rules into step with a changing society.

The law should also change in step with technology.