The major concerns surrounding eDiscovery are typically cost, time and reliability. How to get a accurate collection of relevant data within the court appointed time window without breaking the bank. The solution is actually what some mistakenly think is the thorn of all eDiscovery projects. Backups tapes have traditionally been synonymous with the undue burden argument; time consuming, painful and expense to discover. However direct indexing technology make this argument mute. Not only is tape discovery quick and affordable, tapes also contain an unspoiled, point in time copy of all the data in question.

IT teams capture corporate data from . . . [more]

I suspect that I have dated myself by referencing the British pop hit from Bananarama; however the lyrics are relevant in appreciating those components of a successful eDiscovery project. It seems that at almost every eDiscovery meeting a client initially starts off by requesting confirmation as to “what tool are you using?”

I suggest that there is too much emphasis on what “tool” we are using, while forgetting two other key elements in any successful technology application or deployment; process and people. Having conducted investigations and eDiscovery projects for over 12 years, where I have leveraged technology in finding the . . . [more]

I had an interesting experience the other week with a law firm client and their corporate client regarding the need to process a vast amount of data and the associated costs with the project. It was apparent that there was a lack of understanding of scope and appreciation for the associated costs related to achieving their goals. In my opinion, the scope of work was further reaching than what was needed. I am not a lawyer, but common sense should rule the day over restoring data from an entire network that could amount between 400 and 800 backup tapes and . . . [more]

After more than a decade in the eDiscovery industry, I often reflect back on my journey and equate our earliest experiences to crossing an ocean in a small leaky boat, facing unchartered seas in unpredictable weather while relying on an inexperienced crew. The eDiscovery industry has been built by pioneers on the backs of unsuspecting early adopter clients and technologists who shared a common vision, the digitization of the legal world and the inevitable mainstream adoption of electronic evidence management.

Today, while the industry continues to evolve and grow, eDiscovery processes and technologies have matured and a well-established community of . . . [more]

With less than 30 percent of all information ever appearing as ink on paper, the “paper trail” often turns out to be a “bitstream.” This sheer volume of data held by organizations makes it clear that electronically stored information plays an essential part in litigation today. Once the information as been preserved, what’s next? Well, it would make no sense for anyone to read through all of upper management’s e-mails or review all the documents stored on an organization’s network. The solution? Applying search terms to the electronically stored information to identify responsive files and documents.

Successful searches of electronic . . . [more]

Even now, Litigation Support is a rather nebulous field. I know people with IT, law clerk, lawyer, training and records management backgrounds in jobs with the title of “litigation support” or “eDiscovery” something-or-other; but their fundamental core skills are obviously very different. This, along with a lack of key job descriptions, has caused some problems for the still young eDiscovery industry. How can you find the right person for the job when “Proficient in Concordance” can mean anything from knowing how to enter data to being able to write CPLs (Concordance’s proprietary programming language)? Is a Litigation Support Specialist someone . . . [more]

It is difficult to shut our individual “professional world” out from technology as it continues to play an ever increasing role in helping us manage our day to day activities and accomplish tasks that need to be done. This will range from the obvious of your cellular phone to Blackberry to the Delonghi for your morning expresso. If your coffee is too strong one morning, you can adjust for tomorrow, but we are not afforded that luxury when processing ESI. The reality is, technology continues to evolve, manufacturers / developers are listening to market needs and in many cases developing . . . [more]

In an earlier posting on Slaw, Norwich Order Applied to Gmail Account, Omar Ha-Redeye discussed the facts, findings and implications of the recent decision in York University v. Bell Canada Enterprises, 2009 CanLII 46447 (ON S.C.). To that excellent posting, I offer some additional observations.

Threshold

First, York University v. Bell Canada Enterprises is of interest in respect of its finding regarding the first element of the test for a Norwich order. Prior to York University v. Bell Canada Enterprises, it was arguably well-established that the first element in the test for Norwich order is that the . . . [more]

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 . . . [more]

E-discovery can and often does raise important privacy questions for counsel and clients. The Sedona Canada Principles Addressing Electronic Discovery [PDF] identify privacy as one of the non-monetary costs that should be considered in applying the concept of proportionality (Principle 2). The Sedona Canada Principles also suggest that parties should agree to or seek court direction to protect privacy during e-discovery (Principle 9).

In light of a number of recent court decisions on e-discovery, counsel and clients must consider, inter alia, the scope of what should be produced in discovery (e.g. whether entire hard drives or other devices need . . . [more]

In email conversation with a well-known figure of the US eDiscovery world a few weeks back, I realized that we had both noticed that the eDiscovery world has a dirty little secret: there are some eDiscovery vendors out there, offering both software and services, who promise more than they can deliver.

Let me hasten to add, before I start receiving a torrent of protests, that there are many, many vendors who deliver what they promise, and that often failure to deliver is not a reflection of the vendor’s capabilities (or their promises), but rather issues with communication, changes in project . . . [more]

On my flight back to Toronto, I decided to make use of this time to make my contribution to the ‘bits and bytes’ that have gone before me from a 35,000 foot view (how appropriate considering where I am). I wanted to start by stating the obvious, I am a business owner. I continue to manage a litigation support company as I have for the past 8 years. I offer that so readers know the perspective I could take concerning best practices related to electronic evidence management and litigation support. However, the important point is that I am viewing this . . . [more]