E-DISCOVERY: The Impact of New Rules of Court Canadian Association of Law Libraries Conference

1. E-DISCOVERY: The Impact of New Rules of CourtCanadian Association of Law Libraries Conference Thomas P. Donovan May 27, 2009

2. The Legacy of Nedd Ludd

3. Past Approaches

4. Is this an Option ?

5. Overview • Joining the Luddites is not an option. • Various provinces have approached the management of digital records in some fashion. • For example, Ontario, BC and Alberta have developed guidelines governing production of electronic information based on Sedona Principles.

6. Nova Scotia is the first jurisdiction to codify the Sedona Principles in a mandatory rule of Court. • It is clear that this process will continue and all jurisdictions will either adopt general principles or enact specific rules of Court. • Underlying principles are the same in either regime. • To explore why this process is occurring I want to briefly overview the underlying technological change that is driving these events.

7. We all do not rely on paper – neither will the justice system • 99% of new documents are electronic • 70% + never printed • Storage systems have unlimited capacity • Legal process has dramatically changed in response

8. Digital Records are Everywhere • E-mail and attachments • Word, Excel and PowerPoint files • Websites,intranets • Social networking sites • Proprietary databases • BlackBerry messages • Voicemails • GPS and collective intelligence emerging

9. Digital Records Are Very Different From Paper • More voluminous i.e. unlimited • More persistent, virtually indestructible • Data can be presented in multiple formats and views • Almost always leaves an audit trail • Digital tracks are everywhere • The modern smoking gun !

10. Digital Records Don’t Reside in a Filing Cabinet • Any shared server • Home computer, relatives • Portables, loaners • ISP, ASP, Online presence • BlackBerrys, PDA, iPods • Thumb drives, CDs, DVDs, diskettes • Cell phones, fax machines, peripherals • Web history and cache • Voicemail • Text Messages • Social networking sites and derivatives

11. Effect on litigation management Sheets of Paper A pretrial discovery request today can generate nearly 10,000 times more paper than 10 years ago 10,000 * Source is WIRED magazine

12. NS Counsel CertificateUnder CPR 15 • Illustrates the new regime: “ I explained to Joan Smith the duties to search for, make diligent efforts to become informed about, acquire, sort and disclose documents and electronic information under Rules 14, 15 and 16. I have also discussed with the affiant the kinds of documents and electronic information that may be relevant in this proceeding.”

13. A few more illustrations of the NS codification of the underlying principles • Disclosure of privileged information • 14.06 (1) Delivery by mistake of privileged information when making disclosure under Part 5 does not extinguish the privilege, unless the mistake results from one of the following: • (a) A system of records management that is ineffective, or otherwise unreasonable;

14. Expense of Disclosure 14.07(1) The party who makes disclosure must pay for the disclosure, unless the parties agree or a judge orders otherwise. (2) A judge may order another party to provide an indemnity to the disclosing party for an expense of disclosure, if all of the following apply:

15. (a) considering the disclosing party’s means, the indemnity is clearly necessary to achieve proportionality within the meaning of Rule 14.08(3); (b) the expense is not the result of a system of records management that is ineffective, or otherwise unreasonable;

16. Metadata • NS rules specifically require preservation of “metadata” • Is this unique? • No, another universal principle • A technical challenge

17. How do These Changes Affect the Way Lawyers Work? • Emerging use of litigation response teams! • Who needs to be part of the team? • Core Group • In-House Counsel • IT • External Counsel • Service Bureau • Electronic Discovery Consultant • Forensic Expert • PROJECT MANAGER

18. Planning – The Other Side • This means that the standard of care for lawyers will necessitate knowledge of these technical topics as offensive application arises under common law or mandated regimes. • Not a one way street – Opportunities beckon! • What is needed from the other parties?

19. What information do you want? • Metadata • Native files • Images • Litigation Hold technique • Offensive • Defensive

20. The Sedona codification in the NS Civil Procedure Rules also illustrates the level of technical knowledge that will be required sufficient to identify when and if to deploy forensics • Recovering deleted files • Track web surfing patterns • Analyze individual user behavior • Establish authenticity of a file

21. File Management Challenges • Counsel everywhere will need to be able to manage outside suppliers in order to contain costs and maintain the integrity of clients’ legal budgets • Certain situations will require the retention of a third party supplier • Managing the supplier will be key to cost containment

22. Efforts required to identify local, national and international suppliers suitable for various situations • The industry is mature in the US but not so in Canada

23. Processing Issues for Technical Consultants & Legal Counsel • US emerging practice is to verify e-discovery literacy of legal counsel • Also separate counsel being retained to mitigate production demands from retained counsel! • Why? • Mirror image level disclosure • Lack of focused demand • Case law has led to liability shifting behavior

24. These principles illustrate the requirement that law firm litigation departments will need to be reorganized to address the challenge and emerging issues • Who should process the data? • Law firm IT / litigation support department • Service bureau • Available Infrastructure • Processing • Review tools • Complexity of the project determines • Volume of data • Time available • Independent testimony needed • Forensics?

25. Summary • Common law and procedural developments are responding to the technical environment • In conclusion the principles that have been enshrined in NS Civil Procedure Rules simply reflect the underlying common law principles that apply everywhere • Whether other jurisdictions elect to enact specific rules such as NS Civil Procedure Rules is beside the point as the Sedona Principles will guide jurisprudence in either case

26. NS Civil Procedure Rules do illustrate the importance of digital management by all litigation counsel • Internal governance challenges arise • Document retention/destruction policies key to such management • Liability shifting behaviour requires management – early focus and new roles • Education will be an ongoing challenge • New demands will require expansion of library science/records management services

27. In closing, a good reference resource is: www.lexum.umontreal.ca/e-discovery/