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How to Develop Efficient E-Discovery Systems – Data Storage – News & Reviews – eWeek.com

March 14, 2011 By Leave a Comment

Among large corporations that are serial litigants, there is growing recognition of the proactive need to implement consistent and reproducible e-discovery systems in their organization before—not after—they face significant e-discovery obligations in litigation. While the commitment is significant in terms of the time and effort required to implement and maintain such e-discovery systems, the investment of resources quickly pays off in the form of litigation efficiencies and reduced attorneys’ fees and vendor costs down the road.

The adoption of such an internal e-discovery system need not be a great burden for other organizations whose litigation needs are less immediate. Even small to midsize businesses that infrequently face litigation and e-discovery demands can benefit from implementing a proactive, e-discovery plan appropriate to their needs. Even some forethought is better than none. At a minimum, an effective e-discovery system should:

1. Define the company’s method for initiating and communicating litigation holds,

2. Establish procedures for preserving potentially relevant electronically stored information (ESI), such as suspending automatic e-mail deletion when litigation becomes reasonably anticipated,

3. Describe systems and sources of data within the organization (in more detailed format, sometimes referred to as a “data map”), and

4. Identify responsibility within the organization (including the respective roles of the legal department and IT) for satisfying e-discovery responsibilities when they arise.

A company’s existing outside counsel and consultants will often assist in-house staff with some of this work at no cost (or reduced cost). There is much to be gained by partnering with outside e-discovery practitioners who can apply their experience and knowledge in assessing e-discovery needs and defining the appropriate systems and business approaches required to address those needs.

via How to Develop Efficient E-Discovery Systems – Data Storage – News & Reviews – eWeek.com.

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Mining Evidence under the California Electronic Discovery Act

November 18, 2010 By 1 Comment

Now that California has adopted procedures for conducting E-Discovery, requests for electronically stored information (ESI) should be part of a routine discovery plan. Getting ESI in electronic form is better than paper because it contains more information, is easier to use and distribute, and eliminates wasteful printing. This article gives practice tips on conducting E-Discovery in California.

Most information is created and stored electronically, yet document productions are still largely done by paper. Printing out electronic documents for discovery not only wastes paper, it also results in the loss of potentially significant evidence. California has taken a major step toward modernizing its discovery laws by enacting the Electronic Discovery Act to facilitate the discovery of writings created in digital form. E-Discovery ranges from a simple request that a party produce files or data from a computer, cell phone, or other electronic device on a CD-ROM, to the physical inspection of a computer system by an expert.

E-Discovery has been around for years and is routine in larger cases. Where the litigation budget is tight, lawyers have abstained from E-Discovery, concerned that the expense of hiring a computer expert will outweigh the benefit of obtaining the information. Not all E-Discovery requires the use of an expert. In fact, the use of an expert is usually required only where a party wants to recover data believed to have been intentionally erased or altered, or where a party wants to search a computer for data. In all other cases, it should suffice to simply ask for the production of computer data, as would be done for any other type of writing. For example: “Produce the premarital agreement between the parties dated June 5, 2008, in the electronic form in which the document was created.”

Relying on the opposing party to produce a paper version of electronically stored information (“ESI”) can be a mistake. It is usually better to demand that the data itself be produced. Viewing a document in electronic form can tell the reader the history of the document (such as when it was created and who created it), things which cannot be seen on paper. It is also easier to work with information in electronic form, rather than thumbing through a stack of papers to find information or having to enter financial information into a spreadsheet by hand for analysis.

via Mining Evidence under the California Electronic Discovery Act.

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E-Discovery in Canada in 2010 – Inside Counsel

June 15, 2010 By Leave a Comment

On New Year’s Day, 2010, the province of Ontario became the latest North American jurisdiction to amend its rules of civil procedure to address the discovery of electronically stored information. Yet it mentions the phrase “electronic discovery” only once.

The United States Federal Rules of Civil Procedure were amended in 2006 in at least 12 places to specifically refer to electronically stored information in discovery. Thirty states have since followed suit. One Canadian province, Nova Scotia, has also amended its rules.

Now Canada’s largest province, home to nearly one-third of the country’s population and more than half of its lawyers, has amended its rules of civil procedure in a unique way  way that might best be described as either troublingly vague or a stroke of genius. The relevance to U.S. practitioners is this: In many categories of complex litigation, be it in the financial sector, intellectual property or energy, actions that may be in the U.S. Federal Courts may very well have a Canadian parallel action, and most often that will be in the Superior Court of Ontario. If you think that “up there” e-discovery is not as far along as in the U.S., think again.

Ontario’s amended Rule 29.1.03(4) reads as follows: “In preparing the discovery plan, the parties shall consult and have regard to the document titled ‘The Sedona Canada Principles Addressing Electronic Discovery’ developed by and available from The Sedona Conference.”

That’s it. “Electronic discovery” is mentioned only here, within the title of a document that lawyers “shall consult and have regard to.”

For observers of the U.S. legal scene, this seems naïve. How do you enforce a rule like this? What Ontario has done either invites difficulty, because on its face this looks vague; or, it has placed on its legal profession—including its judiciary—a clever mandate to become well-informed and act like grown-ups. It may turn out to be the smartest way yet that any jurisdiction has amended its rules for electronically stored information.

via E-Discovery in Canada in 2010.

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E-Discovery in Canada in 2010 – Inside Counsel

June 15, 2010 By Leave a Comment

On New Year’s Day, 2010, the province of Ontario became the latest North American jurisdiction to amend its rules of civil procedure to address the discovery of electronically stored information. Yet it mentions the phrase “electronic discovery” only once.

The United States Federal Rules of Civil Procedure were amended in 2006 in at least 12 places to specifically refer to electronically stored information in discovery. Thirty states have since followed suit. One Canadian province, Nova Scotia, has also amended its rules.

Now Canada’s largest province, home to nearly one-third of the country’s population and more than half of its lawyers, has amended its rules of civil procedure in a unique way  way that might best be described as either troublingly vague or a stroke of genius. The relevance to U.S. practitioners is this: In many categories of complex litigation, be it in the financial sector, intellectual property or energy, actions that may be in the U.S. Federal Courts may very well have a Canadian parallel action, and most often that will be in the Superior Court of Ontario. If you think that “up there” e-discovery is not as far along as in the U.S., think again.

Ontario’s amended Rule 29.1.03(4) reads as follows: “In preparing the discovery plan, the parties shall consult and have regard to the document titled ‘The Sedona Canada Principles Addressing Electronic Discovery’ developed by and available from The Sedona Conference.”

That’s it. “Electronic discovery” is mentioned only here, within the title of a document that lawyers “shall consult and have regard to.”

For observers of the U.S. legal scene, this seems naïve. How do you enforce a rule like this? What Ontario has done either invites difficulty, because on its face this looks vague; or, it has placed on its legal profession—including its judiciary—a clever mandate to become well-informed and act like grown-ups. It may turn out to be the smartest way yet that any jurisdiction has amended its rules for electronically stored information.

via E-Discovery in Canada in 2010.

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Ontario’s New Rules of Civil Procedure Address Electronic Discovery : Electronic Discovery Law

February 11, 2010 By Leave a Comment

As of January 1, 2010, Ontario’s new Rules of Civil Procedure became effective, including significant changes to the rules of discovery.  Among the changes/additions is Rule 29.1.03(4) Principles re Electronic Discovery, which states that “In preparing the discovery plan,” as is required by Rule 29.1.03 (1), “the parties shall consult and have regard to the document titled ‘The Sedona Canada Principles Addressing Electronic Discovery’ developed and available from The Sedona Conference.”  In its explanation of the provisions of the newly effective Rules of Civil Procedure, the Ministry of the Attorney General specifically identified several of the Sedona Principles to be considered:

• Discovery steps should be proportionate.  Parties should consider the nature of litigation; relevance of electronic evidence; importance to adjudication; and the cost and delay that may be imposed to deal with electronic documents.

• Parties should meet and confer as soon as possible regarding identification, preservation, collection and production of electronic documents.

• Parties should be prepared to disclose all relevant electronic documents.

• Parties should agree as early as possible on the format in which electronic information will be produced.

via Ontario’s New Rules of Civil Procedure Address Electronic Discovery : Electronic Discovery Law.

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