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“Your Honour, the letter I’m referring to is in volume 4, Tab 3. [Pause.] Sorry, the pages aren’t numbered. [Waiting.] It’s about ten or twelve pages in. [Pause.] Sorry, I meant Volume 3, Tab 4. About half-way in. [Waiting.] Are you with me?” [Pause.] [Two hours later:] “Your Honour, I believe counsel are agreed that we will need at least another day for argument. Thank you.” Observation: Justice dragged to a halt by tab hunters is not justice. One big reason: failure to use technology for an e-hearing. From the CBS News story of April 27th, 2010: “While the massive, 901 page binder of exhibits indicated the depth of the investigation, it also served as a convenient foil for the former Goldman Sachs executives during their interrogation. Rather than answer questions, they often killed time by flipping through the huge binder of documents as they tried to find the exhibit their questioner was referencing.” The Washington Post observed the same problem: “ The seven men, including chief executive Lloyd C. Blankfein and Executive Director Fabrice Tourre, subject of a fraud lawsuit by the Securities and Exchange Commission, at times struck a humble tone with the committee but gave no ground on the concerns raised by senators, offering technical responses and eating up time looking for documents in a 900-plus-page binder.” It seems we never learn. Now with the BMO mortgage fraud case in Alberta, we have the spectacle of lawyers (presumably) moving trucks of boxes into the “new” courthouse. It’s 2010 folks: I have a new mantra: Ban the binder.  Lawyers getting paid to move boxes (CBC Photo) Circle September 22 and 23, 2010 on your calendar to attend the inaugural Canadian Forum on Court Technology at the Brookstreet Hotel in Ottawa. This will be a chance to have a larger meeting of Canadians that are interested in court technology as well as an exciting opportunity to collaborate with the broader justice community in the development and implementation of a vision for technology that will enhance access to justice. Keynote speakers include Richard Susskind (author of “The End of Lawyers”), Allan Seckel (Deputy to the Premier of British Columbia) and Justice Louise Charron (Supreme Court of Canada). For more information visit http://www.ccct-cctj.ca/forum/en/programfull/ Canadian corporations and their counsel are not fully equipped to handle the dramatic new changes in electronically stored information that are desperately required. Having an electronic records management program that isn’t well managed is like carrying on business without insurance. If you get sued, there will be an enormous cost. You can prevent that. Attend eDiscovery Canada in Toronto, June 28 – 30 to hear leading electronic records management strategies from lawyers, judges and experienced in-house counsel, from: Department of Justice, Canada, Lockheed Martin Corporation, Bell Canada, Government of Canada, The Ontario Superior Court of Justice, Pillsbury Withrop Shaw Pittman LLP, Federal Court of Canada, U.S Securities and Exchange Commission, Xerox Canada and Many More! For More information visit: For some time I’ve been considering an issue that seems to be essential in the the litigation hold process and preservation of ESI. The issue is that when a party reasonably anticipates the possibility of litigation they are under a positive duty to preserve potentially relevant ESI. But what exactly does “preservation” mean? Preservation (we often assume) means that the ESI must be kept in the same form and in the same location unaltered and untouched – i.e. as it is kept in the normal course of business. But I don’t think that is always feasible. More basically, we all agree that at a minimum, preservation means that custodians must not allow potentially relevant ESI to be deleted or materially altered. The question comes up very specifically when lawyers advise their clients to “preserve” (through the mechanism of a litigation hold notice), and the first thing clients do in response to such a notice is to go through their email, browsing and searching for potentially relevant messages, and then either print those messages or move those messages into a new folder created specifically for the litigation. The act of opening these emails, of moving them or printing them is itself problematic, because theoretically custodians should be preserving the email messages intact. The problem is that when litigation threatens, individuals have no choice but to go through their records, sometimes frantically, to ensure that they have the records that they need to instruct their lawyers appropriately. In real life this happens even before the actual preservation threshold is reached, as managers usually have a sense that litigation might arise well before counsel are retained. Indeed, the rules in Ontario require parties to file with their statements of claim or defence any relevant documents on which they intend to rely. In order to gather these documents, the principles of maintaining ESI in its pristine format and environment, as it was kept in the normal course of business, becomes practically (and economically) impossible. See the Montreal Gazette article here. As online privacy is eroded, there are more opportunities for litigators to mine for gold. If you are going to drive yourself to the airport, it might be useful to have a map or GPS, a copy of the Highway Traffic Act, and a licensed driver who follows the rules. In e-discovery if you are not going to get some qualified help, you should develop internal protocols to establish the defensibility of your processes. For example: 1.1. Protocol for Requesting Client Data Darryl has never driven a car and has never been to Halifax in his life. He finds himself at the airport and needs to get downtown. He wonders whether he should a. Rent a minivan, b. Rent a sedan or c. Rent a convertible. (Darryl is a lawyer, and the client is paying for his travel expenses.) Darryl decides to call a consultant. He asks the consultant which type of vehicle is best to rent. Since Darryl is alone and it’s raining, the inexperienced consultant recommends the sedan. Darry convinces the clerk to let him rent the car by claiming he left his licence at home. But once in the driver’s seat Darryl realizes he is hopelessly incapable of starring the car, let alone driving it all the way downtown. I happened to be at the airport and saw the whole thing unfold. I offered Darryl a lift in my rental car (which he accepted gratefully) and on the way downtown I politely said, “Next time take a limo!” Many lawyers feel that the preservation of electronic files in civil cases should be simple sweet and cheap. After all, they reason, we are interested in the content, not some fancy-pants metadata. What they miss though is the essential function of metadata – it is not only evidence in itself that might be relevant, but it is the file folder or envelope that preserves – and possibly proves – the authenticity of the underlying content. From an evidentiary perspective the authenticity of electronic evidence may be presumed, but this presumption is rather easily rebutted. The technology of capture is not as important as the process. More on this later. The CBC reports: “In his new book, Delete: The Virtue of Forgetting in the Digital Age, Viktor Mayer-Schönberger writes that forgetting is a natural human process, and that digital technology and cheap storage are creating all sorts of unexpected problems.” via CBC News – Technology & Science – Society needs to teach digital systems how to forget, author says. The permanent nature of digital memory is one reason that counsel need to be prepared to research litigants and witnesses more extensively than ever before. While paper records and their precursors may last longer than most of today’s digital media, the paper historical record is not nearly as comprehensive as the digital one. As today’s digital tsunami of videos, blogs, websites, databases and even text books are rising to the cloud, where they could stay forever, the costs of litigation will soar with them, as will the opportunity to settle or avoid litigation altogether. |
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Copyright © 2010 Martin Felsky - All Rights Reserved |
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