It’s not how it used to be. E-discovery is becoming more run of the mill with even small law firms working on small matters accepting that the contents of their clients’ computers are just as important as the contents of their filing cabinets. At the same time, clients are demanding lower costs; in part because the economy demands it, and in part because e-discovery can be very expensive (although it doesn’t have to be – and clients are beginning to pick up on this). The proliferation of technology, service models, service providers and increasingly accessible data repositories has increased the . . . [more]
Archive for ‘e-Discovery’
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 . . . [more]
The traditional rule in common law provinces is that that the producing party is responsible for the immediate costs of the production of its documents to the other party. While British Columbia does expressly address the costs of electronic discovery, in Ontario, Rule 1.03(1) provides that the Rules of Civil Procedure shall be liberally construed to secure “the just, most expeditious and least expensive determination of every civil proceeding on its merits”. The cost of documentary discovery under the present regime may easily overwhelm the amount at issue in the litigation. One legal writer has called this the perfect storm. . . . [more]
The Federal Rules of Evidence have now been amended to include a new Rule 502 [PDF], which should represent a sea change in the law of waiver in the United States. Rule 502 is intended to introduce uniformity in the law of waiver of attorney-client privilege and work production protection throughout the United States courts and, through operation of the Commerce Clause of the United States Constitution, among State courts.
The problem that led to the enactment of the Rule is the sheer volume and expense that arises from the review of perhaps millions of documents that are “electronic” in . . . [more]
I am always very surprised to see and hear that there are still some lawyers, judges, CIOs and other officers who don’t know what Electronic Discovery is. Actually, this is not true. I am not surprised, and why would I be about something that we are only forced to learn when we are exposed to it. Most people learn about e-discovery when they are involved in a lawsuit. Why would I be interested in it if I am not involved in a lawsuit? Well, there are 2 reasons: I want to make money from it, which is a very good . . . [more]
Litigation counsel and their clients have long been put on notice that electronically stored information may become the subject of requests for production. The scope of the duty to preserve, and the breadth of the type of electronically-stored information subject to the preservation obligation are not always readily apparent. In fact, when coupled with the reality that huge volumes of material maybe involved, e-discovery has the potential to increase litigation costs to staggering levels.
Electronically stored information has and will continue to change the way people do business and store business related information. For lawyers, it has changed how they . . . [more]
Huge volumes of business data are nothing new. But the ways data can hurt you these days – well, that’s a different story. In an age when your company can rise or fall on how they manage their information how an organization manages its ever-growing mountains of data can be the difference between a good day at the office and sheer disaster.
Some organisations take a “wait and see” approach to controlling information. They keep their fingers crossed for nothing to go wrong – and then call in help when it does. That’s a short-sighted view that creates more risk . . . [more]
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 . . . [more]
There is little doubt that eDiscovery presents a challenge to lawyers.
Identifying exactly what kind of a challenge it is has proven to be a little harder to define. Some would consider the sheer volume of ESI to be the greatest challenge. Others would say it’s the impenetrable technical jargon that presents the biggest hurdle to lawyers. Or perhaps it’s the fragility/persistence paradox that has most lawyers scrambling to catch up.
You can read any number of blogs, articles and white papers that present different aspects of the complexities of eDiscovery as being the single greatest challenge (generally the one . . . [more]
According to a recent article in The Economist, the advent of e-discovery may be the single most significant change to the legal system in the last half century. This is principally due to the huge volumes of material that can be involved and the sometimes staggering cost of processing it. It has been aptly put by Ken Withers, Director of Judicial Education and Content for The Sedona Conference,
More money is probably spent litigating electronic discovery problems than in litigating class actions…this is part of potentially every case in the 21st century
Approximately 60 billion emails are created and . . . [more]
For many of us, E-Discovery has become a thorn in our side as we attempt to ensure that our organizations are able to be compliant with the court’s demands – particularly when dealing with the US Courts. Perhaps it’s time to look at some of the benefits of an effective e-discovery capability within an organization.
Of course the first value that is often commented on is related to Records Management and the ability to facilitate and strengthen the Records Management goals, thereby leading to a connection with Risk Management and the Chief Risk Officer’s portfolio. This generally is successful through . . . [more]
One of the most controversial electronic discovery cases in the U.S. in 2007 involved the preservation of ephemeral, or transient, electronically stored information (“ESI”) stored in Random Access Memory (“RAM”). In Columbia Pictures, Inc. v. Bunnell [PDF], 2007 WL 2702062 (C.D.Cal. Aug. 24, 2007), the court addressed plaintiffs’ motion for an order directing the preservation of information in the RAM of defendants’ computers. The court rejected defendants’ argument that ESI included only information stored for later retrieval. Defendants also argued that ESI could not include information held in RAM because the period of storage (less than six hours) was too . . . [more]