Canada has offered guidance to the U.S. on alternative healthcare systems and recently schooled us in Olympic Men’s Hockey. So it isn’t far fetched to talk about how Electronic Discovery is handled in Canada. This is a useful show for legal professionals who might litigate cases in Canada as well as legal professionals who want to hear ideas of what works from our neighbors up North. Their system is far less adverserial and yes there are more privacy laws which differ from U.S. laws. This podcast will include Susan Wortzman from Wortzman Nickle, a well known boutique law firm based in Toronto, Canada which focuses on Electronic Discovery. In addition, Judge Colin Campbell, a participant in the Sedona Conference and one of Canada’s most widely recognized speakers on electronic discovery is also a guest. Join us for this interesting show and to hear this talented panel.
Challenging ‘Manual’ ESI Collections | Law.com
Discovery of electronically stored information is now an integral part of civil litigation in federal courts. Although Fed. R. Civ. P. 26(b)(2)(B) and 34 address production of electronically stored information, they are silent on related procedures for searching and collecting ESI. For various business reasons, including burden and expense, some corporate litigants opt for more informal, “manual” collection methods (i.e., searches performed by individual records custodians, often without sophisticated data-collection software and hardware) when responding to ESI requests.
What happens when the requesting party challenges the results of a production based on manual collection methods or otherwise objects to the propriety of those methods? In Ford Motor Co. v. Edgewood Properties Inc., 257 F.R.D. 418 (D.N.J. 2009), the District of New Jersey analyzed whether manual collection methods (versus automated) are sufficiently reasonable to meet a party’s electronic discovery obligations. This article will address this evolving issue and the guidance provided by Ford and other relevant decisions.
Since the Federal Rules of Civil Procedure do not specify procedures for searching and collecting ESI, the Sedona Conference, a respected nonprofit research and educational institute that has provided substantial guidance on e-discovery best practices, has established some benchmarks. In June 2007, the Sedona Conference published the second edition of its seminal work, The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production. The Sedona Principles elaborate on 14 principles intended to frame e-discovery best practices including ESI search and collection procedures. These now-essential guidelines were followed by the Best Practices Commentary on the Use of Search And Information Retrieval Methods In E-Discovery, which contains eight “practice points,” several recommendations and extensive discussion on the current state of search and retrieval methodologies and practice.
Ontario’s New Rules of Civil Procedure Address Electronic Discovery : Electronic Discovery Law
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.
Free: The Future of Litigation by Shira A. Scheindlin
The following remarks were presented by U.S. District Judge Shira A. Scheindlin on Jan. 13, 2010, at the Inns of Court
Another problem is what privacy laws, and for that matter what privilege laws, will govern discovery in a civil case involving foreign parties (i.e., cross-border discovery). In the era of globalization and multinational companies, relevant documents will be created and maintained in foreign jurisdictions, many of which have privacy laws that forbid the production of documents without consent of the author, the recipient or any person mentioned in the document. Some countries have recently put teeth in their privacy laws by imposing stiff fines or jail terms for anyone who produces such documents in violation of their laws, even when such production is ordered by a U.S. court. Our courts have held that U.S. laws will govern the production of documents in a U.S. litigation, even when those documents are created and stored abroad and our courts have not been particularly respectful of the limitations imposed by foreign laws.29 This may be changing. And where are documents stored and created anyway in the era of cloud computing?
Our laws of privilege may not be the same as those in foreign jurisdictions. For example, the EU’s legal professional privilege (their equivalent of our attorney client privilege) does not protect communications between in-house counsel and employees. Which law will govern assertions of privilege?
I close with the recent theme of cooperation as the latest concept in the management of discovery. For those steeped in the adversary system this word will sound strange but it is on everyone’s lips. The Sedona Conference has issued its Cooperation Proclamation, endorsed by nearly 100 judges, that states, in essence, that we can no longer afford the luxury of fighting over discovery and spending years hiding the ball.
Lawyers are urged to cooperate in understanding each other’s computer systems, and in agreeing on a list of search terms, the search techniques, the form of production, whether metadata will be required, and, if so, for what records, and stipulating to the authenticity of electronic records through hashing techniques, the 21st century equivalent of Bates stamping. Those who continue to practice with a 20th century mind set and refuse to engage in cooperative discovery efforts may find themselves on the wrong end of a sanctions motion. We may also see a move toward more cost shifting.
Shira A. Scheindlin is a U.S. District Judge in the Southern District of New York.
via The New York Law Journal – Free: The Future of Litigation.
International Cloud Computing Meets U.S. E-Discovery
“Software as a Service” (SaaS) providers such as Google, IBM, Cisco and others are offering multinational corporations the opportunity to replace their enormously expensive and ever changing technological infrastructure with SaaS computing facilities. Individual companies would archive and access information in these systems through the internet at a presumably lower unit price (cloud computing). These providers also promise to manage the skyrocketing costs of collecting and disclosing electronically stored information (ESI), especially emails, demanded in U.S. judicial and regulatory proceedings (e-discovery).
Since these repositories are not under the control of the company being sued, they argue that the very strong policy and procedure, audit trails and reliability in the “cloud” are a vast improvement over a company’s internal procedures. However, international cross-border e-discovery issues threaten to rain on the cloud computing parade. The SaaS provider, the multinational corporation and their attorneys must carefully address and anticipate these e-discovery issues early in their discussions or risk costly sanctions. Moreover, litigation counsel cannot be surprised to learn that all of the company’s ESI is outside of the company’s control.
Civil code countries, such as France and Germany, take dramatically different approaches to cross-border information transfer than does the U.S. The U.S. requires parties in any litigation to exchange information which “may” lead to the discovery of admissible evidence. Issues of confidentiality and privacy are dealt with through various devices such as protective orders and confidentiality agreements. This is not true for many European and Asian countries where U.S. type discovery is rare and broad data protection and privacy rights are enforced by the state and are not negotiable by an employer. For example, “processing,” includes a company’s operations relating to collecting, storing, retrieving, disclosing and transmitting personal data and includes any information relating to an identified or identifiable natural person. Countries have introduced laws (”blocking statutes”) to restrict cross-border disclosure of information to foreign jurisdictions. See generally, “The Sedona Conference Framework for analysis of cross border discovery conflicts-A practical guide to navigating the competing currents of international data privacy and discovery” .
Read more via Project Counsel » Blog Archive » International Cloud Computing Meets U.S. E-Discovery.
Live from the Georgetown Law Advanced E-Discovery Institute: some thoughts on Day 1 – The Posse List
Judge Lee Rosenthal gave the keynote titled Is the E-discovery Process Broken, &, If So, Can It be Fixed?
Judge Rosenthal’s opening address set the table for the rest of the 2-day conference. There were so many notable comments she made but here are are a few:
- a litigation survey showed only 5% of the parties had used data sampling
- sixty percent of corporations did not have any litigation holds, which can be dangerous
- the two important recent cases on e-discovery are Twomley and Iqbal
- there has been a lack of success of District Court Judges to control discovery
- proportionality is in the national debate and an adequate set of controls need to be applied to achieve proportionality. This was the mantra repeated throughout the 2-days of the conference
- The Sedona Conference Proclamation of Co-operation is a good starting point for collaborative e-discovery
. Effective e-discovery should include a reasonable cost component. The ACLS and IALAS report discusses 29 principles to promote effective e-discovery including early identification of issues and better control to contain costs, fact based pleading, narrow requests for production, more early discussion and more judge involvement
- Rule 16 helps expedite discovery and contains items for courts to narrow litigation including active judicial management. Rule 16 and 26(f) are notably underused
Potential fixes for the system: there are several pilot programs currently being conducted, notably one in the 7th circuit with the goal of incentivizing early discussion and e-discovery being resolved as an example of Rule 26(f) information sharing and co-operation.
Local rules are not good and a problem because they vary and one size does not fit all.
And the big take-away: the judges are in a good position to take a long look at e-discovery in May 2010 at the Duke University conference where the FRCP Rules committee will revisit judicial involvement and settlement issues.
via Live from the Georgetown Law Advanced E-Discovery Institute: some thoughts on Day 1 – The Posse List.
Sedona Continues Call for Cooperation – Law.com
If hell is the last stop for attorneys who are “eternally locked in discovery disputes,” then The Sedona Conference — a nonprofit research and educational institute — wants to be the guardian angel that keeps counsel cooperative and away from that realm. Working Group 1 of The Sedona Conference consists of judges, attorneys and other experts who meet, discuss and publish on issues relating to electronic discovery. Federal judges are now referring with increasing regularity to the e-discovery guidelines set forth in various publications of The Sedona Conference, including the recently issued The Sedona Conference Cooperation Proclamation. See The Sedona Conference, The Sedona Conference Cooperation Proclamation (July 2008).
The Cooperation Proclamation asks a timeless question: Can’t we all just get along? Although this pronouncement by The Sedona Conference is only a few pages long, its drafters seek no less than a “paradigm shift for the discovery process.” Specifically, the Cooperation Proclamation encourages “a national drive to promote open and forthright information sharing, dialogue (internal and external), training and the development of practical tools to facilitate cooperative, collaborative, transparent discovery. “On the theory that overzealous discovery costs too much and yields too little, the Cooperation Proclamation aims to curb the knee-jerk and often counterproductive aggression sometimes exhibited by counsel in discovery. In this respect, its goal is the same as that of Rule 1 of the Federal Rules of Civil Procedure: to promote the “just, speedy, and inexpensive determination of every action.”
