On electronic discovery issues we tend to focus on the early stages – identification and preservation. But what happens at the end of the process? After all, the purpose of electronic discovery is to help the parties settle their case and ultimately prepare for trial. When cases do get to that stage, and the parties have gathered, reviewed and produced their “ESI”, can they be sure that the court will handle the evidence in a way that keeps it secure?

Because not all governments and court administrators have developed appropriate systems for e-trials, some judges have taken it upon themselves to foster and manage the use of technology in the courtroom. What happens to your client’s exhibits when they are handed to the judge on a CD? For that matter, how is the draft decision in your case – being prepared on the judge’s laptop – protected from loss, or breach of privacy? Does the court have a backup of your electronic appeal book, and if so, who has access to it?

The Judges Technology Advisory Committee (“JTAC”) of the Canadian Judicial Council is currently in the final stages of revising its landmark Blueprint for the Security of Judicial Information (“Blueprint”). Originally published in 2004 and updated in 2006, the 2009 version is a document that all judges and lawyers should be anticipating. Why?

The paperless court is a reality in a growing number of jurisdictions. But as counsel hand up CDs of scanned documents or USB drives with electronic evidence, as electronic appeal books are copied onto court networks, or as pleadings are uploaded to e-filing systems, how much thought is put into the security of all that information?

By the late 1990s some federally-appointed judges were awakening to the possibility that their increasing use of technology on and off the bench was subject to certain risks, not only due to the inherent limitations of digital technology, but to the structural design of court technology infrastructure. Some of their key concerns were:

1. Do the provincial systems supporting judicial use of technology meet industry standards for security?
2. Is judicial use of computers in the courthouse subject to monitoring by administrative staff?
3. Do the acceptable use policies that apply to government employees apply to judges?
4. Who is accountable for the security of judicial information?

To answer some of these questions, the Canadian Judicial Council (whose mandate is federal) surveyed every court with federally-appointed judges with a comprehensive questionnaire. The survey was prepared and the results compiled by JTAC. In November 2001 JTAC reported its findings to the Council, making the following recommendations among others:

That the Canadian Judicial Council consider conducting a seminar at its next mid-year meeting to review urgent security issues identified in [the report].

That the Canadian Judicial Council ask all provincially and federally appointed chief justices/judges to:

(a) Establish security of the court’s information system as a priority;

(b) Ensure that policy development takes place at an early stage before the conversion to an electronic environment;

(c) Identify and secure the necessary financial, staff and other resources that are critical to implementation of appropriate security measures;

(d) Ensure that a technology staff member who is accountable to the chief justice/chief judge be appointed to manage the court’s security operations.

To achieve uniformity, that the Canadian Judicial Council take a leadership role by authorizing the Judges Technology Advisory Committee to develop a blueprint that addresses recommended security procedures for all Canadian courts, and ensure that resources are made available to the Committee for that purpose.

The recommendations were accepted, and work began on several policies and awareness training programs. The most significant of these, the Blueprint for the Security of Judicial Information (“Blueprint”), was released in 2004 after an extensive period of consultation.

The Blueprint defines the scope of “judicial information” and establishes the principle that if judges are to be accountable in some way for the security of judicial information, they must be involved in a policy-making role. The Blueprint recognizes that judges and court administrators must work together to strengthen security, but it also focuses on three key concerns: first, there must be no content monitoring of judicial work (this is covered in detail in a separate 2002 policy); second, “Every jurisdiction must ensure that a Judicial IT Security Officer who is accountable to the judiciary be appointed to oversee the management of court information technology security operations” (Policy 1) and third, judicial information – at every stage in its lifecycle – must be segregated from non-judicial information. Policy 10 states:

The configuration of a court’s access control systems must support the principle of judicial independence. Judicial users should be provided with exclusive access to their own network resources unless it can be shown that network architecture, configuration, access controls, operational support and information classification schemes are sufficient to provide the highest level of confidence in the segregation between judicial and non-judicial information, and compliance with this Blueprint and the CJC Monitoring Guidelines.

The Blueprint has had an enormous impact on courts and judges. Since the initial Blueprint was published about five years ago, almost every court across the country has (a) assessed its security systems in relation to the Blueprint; (b) adopted a version of the Blueprint as its security policy and (c) made significant changes to the way judicial information is managed. In addition, at least four courts have now designated “Judicial Information Technology Security Officers” or the equivalent, who help develop policies and monitor compliance from a judicial point of view.

The best hardware, software and network security systems are powerless against users who refuse to follow rules, and imposing lock-downs on an independent judiciary is not always easy. Lawyers should be aware that since the turn of the century federally-appointed judges have participated in extensive information security training, organized and presented by the National Judicial Institute and by individual courts.

JTAC is committed to updating the Blueprint on a regular basis. The 2009 draft was approved by JTAC in June and will be considered by the Council at its next meeting. Once translated into French, it will be posted on the Council’s website. For more information or if you have any comments about the 2006 version, please contact me at mfelsky@felsky.com.

Recently I’ve had discussions with several lawyers at big firms and at litigation boutiques, all of whom have a clear understanding of their obligations and their clients’ obligations to preserve, review and produce electronic documents, but all of whom seem to be stymied by the apparently uncontrollable, even irrational costs of ediscovery. They have a great deal of difficulty explaining even to sophisticated corporate clients the necessity of paying for electronic discovery, especially since clients number one instruction on document discovery seems to be, “we don’t want to spend any money.”

There’s no question that doing ediscovery properly from beginning to end throughout a contentious matter involving large entities isn’t free and we know that compared to traditional kinds of discovery (which can be done in dribs and drabs over the course of preparation for trial) that using electronic tools and gathering electronically stored information will always involve an upfront cost that is surprising to many and unwanted by all. But in addition to their inability to justify ediscovery to their clients, lawyers often have an irrational fear of ediscovery costs being out of control. These fears derive from some of the early U.S. cases in which parties came to court complaining of potential costs in the millions (for restoring all backup tape sets or searching through all data on a network) and those cases, having been reported, are clearly going to discourage any party from confidently moving forward with an ediscovery plan in hand.

Admittedly there are cases where a lot of money is spent and has to be spent: for example, large-scale investigations or prosecutions (often on the securities side) where cases involve complex transactions, allegations of fraud, a long history of communication amongst numerous parties – in these types of cases it can be very costly to prosecute as well as defend. Another problem with the perceived high cost of ediscovery is that in many cases, lawyers and their clients alike feel that all of the data that has been collected, processed, and to be reviewed, is irrelevant, but it all has to be done anyway, because the Rules say that production has to complete and everything potentially or remotely relevant to any issue in question must be produced. So we go through the exercise to collect and review gigabytes of data reluctantly even with a degree of cynicism and resentment..

To tell one story along these lines, at a recent meeting with senior counsel on a case involving approximately 1.2 terabytes of captured data and a $75,000 proposal, after discussing various aspects of our discovery plan I asked a plain question: “To give us some guidance in terms of how to proceed with the culling of this data, and based on the type of case that this is, what you know already, and the key documents that you’ve already been able to see, is it your gut feeling that these hard drives are likely to contain some helpful or harmful information that you’re anxious to get your hands on? ” Without skipping a beat the answer came back: “No, this stuff is mostly crap.”

That type of situation gives e-discovery a bad name. All of the above can be avoided, all of these issues can be resolved in a way that is reasonable and effective, but certain things have to happen first:

1. Lawyers have to develop an understanding of the true practical nature of e-discovery and not only gain an understanding of what the potential costs are but what the potential benefits and savings are too. Paying $75,000 to collect, cull, de-dupe, process, and host a million critical documents in a $200 million litigation seems almost free to me. On the other hand, in a nuisance lawsuit, it’s almost criminal.
2. Lawyers have to understand the importance of an effective plan and an meaningful meet and confer process. Without collaboration with the other side, e-discovery can easily be ten times more costly than it needs to be.
3. We not only have to read the Sedona Principles, we must demonstrate some courage in applying them. This means that where data sampling and a phased approach is indicated, it should actually be proposed and done. Where we have diligently preserved and collected data from 100 custodians, we should propose to process documents of (say) the 10 key custodians, and review their data first, before moving on (if ever) to the other 90. As part of a collaborative, ongoing process of unfolding discovery, costs can be not only spread out a little bit more over time for the client’s benefit, but costs can be contained at any time in the process, given the rule of diminishing returns.
4. The approach often taken by law firms to linear review needs to be looked at more closely, and I don’t just mean by incorporating concept search engines, which are obviously being used more commonly (and are adapted into review platforms such as Ringtail and iConect). Not only do these types of tools need to be considered, but other tools such as relevancy ranking, e-mail threading, and near-duplication detection can provide enormous cost savings overall even though they might be associated with an up-front cost.
5. We know that in most Canadian jurisdictions right now, the Rules are inadequate to deal with the fact that organizations and individuals maintain decentralized and impossibly huge and growing collections of data that are not business records; that are not needed for business purposes; that are not required under document retention or limitations legislation. Lawyers have three options:

   a. Plead the Rules to justify an inordinately expensive discovery (for the other side)
   b. Plead the Rules to justify avoiding e-discovery altogether (for your client)
   c. Use the Rules to fashion a process that works, that is practicable, and whose cost makes some sense.

Law firms struggling with e-discovery tend to lack leadership, not technology. Litigation clients deserve to be represented by knowledgeable litigators who can provide good strategic advice, follow well-defined practices for ensuring the admissibility of evidence, and use modern technology effectively to reduce costs and improve the quality of advocacy.

Corporate clients expect a high level of competence especially in areas of high potential risk such as electronic discovery.

But where to start? When we consider the complexities of ESI, the long legacy of paper-based discovery rules, and the unwillingness of some lawyers to embrace technology, how can a firm even begin to address the issues, let alone establish firm-wide best practices?

To help firms come to grips with these challenges I have developed Ten Principles for Litigation Management. They are intended to provide a framework for change management. The framework is designed to support three basic activities within the firm, starting at the top:

1. development of high-level litigation management policies within the firm
2. drafting and implementation of these policies and procedures
3. regular audits to ensure adoption

Although every firm should be working on its own vision of litigation management, the basic principles should be consistent throughout the profession.

1. SATISFY THE LEGAL AND BUSINESS REQUIREMENTS OF YOUR CLIENTS.

   The face of litigation is changing. Law practice economics is being affected. Specialist e-discovery law firms are now emerging. Offshore outsourcing of document review is now a reality. There are many threats — real and apparent — to the traditional practice of litigation, especially where documentary evidence is concerned. It is easy for a firm to get tied in knots when it comes to e-discovery decision-making.

   Every law firm must always remember that its future depends on its ability to provide excellent client service. The client must come first. When that commitment is reaffirmed, lawyers are better prepared to handle complex planning decisions.

2. KEEP CLIENTS INFORMED OF THE NATURE, COSTS AND BENEFITS OF ELECTRONIC EVIDENCE.

   Clients do not enjoy paying bills without understanding why. And clients always want to know – and are entitled to know – what is happening on their case. They need to be kept informed about the risks, costs AND benefits of electronic discovery: how the process works, what rules and guidelines are in place, and how the firm handles strategic issues. In order for clients to be kept informed, however, lawyers must themselves have clear answers to these questions.

3. COMMUNICATE CLEARLY YOUR VISION FOR THE FIRM’S APPROACH TO MANAGING LITIGATION

   All change within the organization starts with leadership vision. Managing partners and litigation practice leaders must consider the short, medium and long-term ramifications of electronic evidence and decide on a clear path to the future. This vision must be communicated clearly within the firm, to clients, and to trusted business partners.

4. USE TECHNOLOGY EFFECTIVELY TO ENHANCE THE QUALITY OF ADVOCACY

   Firms have no trouble spending money on hardware and software, forgetting that the use of litigation technology should have two clear goals: better advocacy and reduced client costs. It’s never about the technology!

5. PLAN EVERY CASE AND ALLOCATE SUFFICIENT RESOURCES

   Lawyers know that they are not the best planners. But e-discovery is a new game and every case requires a game plan. Planning is simply a disciplined, structured approach to completing a project successfully. It requires a few basic but critical elements: a sponsor, a manager, a budget, a time-frame, measurable objectives, regular communication, risk assessment, and sufficient resources.

6. MAKE SURE EVERY MEMBER OF THE LITIGATION TEAM UNDERSTANDS HIS OR HER ROLE

   Today there is an unprecedented amount of confusion in law firms as to everyone’s proper role in e-discovery. IT people are assigned to administer client databases. Law clerks are instructed to open client’s Outlook email to find relevant messages. Administrative assistants are required to produce affidavits. Outside e-discovery consultants are sometimes seen as competitive threats and service bureaus can be treated like adversaries. Clarification of roles and responsibilities will not only ensure the highest level of competence and client service, but also boost valuable morale.

7. EDUCATE, TRAIN AND SUPPORT ALL MEMBERS OF THE TEAM

   This may be a corollary to principles 5 and 6 but is so often ignored that it should stand alone. When firms are slow to offer training and support, professionals suffer increased stress. The firm is unwittingly increasing the risks of a serious error that could compromise its reputation. Training should include the basics of IT, e-discovery strategy, new rules and guidelines, and best practices for new procedures such as meet and confer, document review, and search term strategies.

8. CO-OPERATE WITH OPPOSING COUNSEL ON PRODUCTION MATTERS

   Judges are asking you to do it, emerging standards and guidelines have incorporated it in writing, and case law supports it. On all document discovery matters including production format — having an effective meet and confer process is essential to avoid wasting client money. Document production even within the context of our adversarial system must be conducted co-operatively or it fails.

9. ADOPT AND ADAPT INDUSTRY-STANDARD PRODUCTION PROTOCOLS FOR YOUR USE

   Lawyers are so good at using precedents for everything — except litigation document management. Every case seems to be reinvented. Now that the Canadian Judicial Council and some superior courts have shown leadership in establishing protocols for the exchange of documents in electronic format — firms should be establishing their own customized version and using it on every case.

10. DOCUMENT AND FOLLOW BEST PRACTICES FOR HANDLING ORIGINAL CLIENT ESI

    One of the pitfalls of e-discovery is that most firms are receiving client data not knowing where it came from or how it was collected. This is not only a serious issue in terms of the completeness of the affidavit, but is also a serious risk to the ultimate admissibility of evidence as a business record.