[this post is the last of a series covering the Leg@l IT Conference]
The last session of the day was the much awaited panel on the topic of e-discovery, featuring Justice David J. Waxse, USA District Court of Kansas City; Me Patrick L. Oot, Verizon Communications; Mr. Robert M. Gerbrandt, TD Bank; Mr. Rafael Gonzalez Caloni, PSS Systems; and Me Dominic Jaar, Bell Canada (Beaudin Legault).
Mr. Caloni put some numbers on the potential importance of e-discovery, noting that in the Verizon v. Vonage case, during 9 months 100 lawyers billed 53,000 hours, 232GB of data as involved, consisting in 2.2 million pages… The “cost of justice” directly amounted to $14M in that case and those costs are still climbing.
Justice Waxse shared some insights with the audience as follows:
- 92% of all new info is stored on magnetic media, primarily hard disks; 8% is on film, paper or optical disks;
- Electronic documents is fundamentally different than paper in many regards – it is virtual, prolific, volatile, free ranging, persistent and has metadata;
- Comparing the burden of keeping paper-based documents as opposed to electrinc documents, he noted that one laptop is the equivalent of 2000 boxes of paper, and one server is the equivalent of 8,000 to 40,000 boxes of paper;
- Types of electronic files range from active, archived, hidden or system files, deleted or residual files, archival files, and metadata;
- There were some recurring problems in the practice of e-discovery, such as data preservation, defining the scope of discovery, form of production, multi-jurisdictional issues, privilege and privilege waiver, shifting or sharing discovery costs, and sanctions;
- The duty to preserve: when does it arise (usually when the notice of claim is served – in the US), what is its scope, and what preservation actions are reasonable under what circumstances.
Me Dominic Jaar commented upon the fact that some e-discovery guidelines are now available, such as:
- Guidelines for the discovery of Electronic Information, in Ontario;
- The Sedona Principles – Canadian Edition (sedonaconference.org – opened for comments now – see the pdf file)
- The BC Columbia Supreme Court Practice Direction re: Electric Evidence (links to a pdf file);
- USA – The Sedona Principles Addressing Electronic Document Production.
Finally, due to the little time remaining, Mr. Gerbrandt was brief (the audience was looking forward to the AJBM cocktail that would follow the conference!), and noted that good records management preventing e-discovery nightmares required moving through definite stages: stage one – thought leadership; stage 2 – early adoption of good practices; and stage 3 – broad corporate integration. He especially noted that it often all comes down to “what is a record”, to educating users, and to coach users in making them “let go” of records. As Mr. Gerbrandt puts it, “keep only what you need; and keep it only for as long as you need”. Oh… and moving emails elsewhere does not prevent them from being discoverable, from example, from a corporate email account to a personal online email account…