See the Montreal Gazette article here. As online privacy is eroded, there are more opportunities for litigators to mine for gold.
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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. Are you a law firm IT person struggling to understand what your role in e-discovery is all about? Are you concerned that clients, lawyers and law clerks in your firm are sending you hard drives, DVDs and other media and asking you to “put it into Summation” or some such other nonsense? Are you wondering about the risks of client data handling? Do you feel you need direction from the lawyers but are getting none? If so you should try to attend my TLOMA presentation between 12-2pm on Thursday November 19, 2009. My presentation will cover the impact of electronic discovery on law firm IT departments including: 1. Best practices for handling client data Sign up at The TLOMA website. If you cannot attend, then perhaps you should contact me about holding a 1-day workshop specifically aimed at educating law firm IT staff on the obligations and pitfalls with respect to e-discovery and client data handling. Send me a confidential note at mfelsky@felsky.com. In addition to two wonderful trips – one to Halifax and one to Denver, September and October were dedicated to teaching 1-day e-discovery workshops at a prestigious litigation firm. Every lawyer, law clerk and IT person in the firm attended. Of the 61 students filling out their evaluations, 9 agreed and 52 strongly agreed with the statement “The trainer was knowledgeable.” Of the 60 students who were asked whether the quality of instruction was good, 1/3 agreed and 2/3 strongly agreed. Thank you for a perfect score! It’s nice to have a professional opinion from someone outside the legal industry. I just wrote a half-hour script for an e-learning module on the Sedona Canada Principles and had it professionally voiced. Here’s what Drew Hadwal, the voice talent professional had to say: “Should you need my services for future modules, it would be an honor to narrate them, as your text was, without question, the most clearly written legal module I’ve ever narrated. And I’ve done a lot of ‘em.” Thanks Drew! Some visitors to my website have asked about the relevance of the bird and animal photos that rotate as you visit pages or refresh them. Time to admit – I took most of them. Yes, I’ve been a seriou amateur photographer since high school and continue to capture animals, birds and a variety of subjects. So I thought – why not use them on my website? No copyright issues! Lexum E-Discovery Canada |
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Copyright © 2010 Martin Felsky - All Rights Reserved |
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