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CCCA_V3No3_Dept-EDiscovery-FIN.qxd:CCCA_V1No2_Dept-CrossBdr-V1.qxd 9/16/09 1:32 PM Page 15 E-discovery are inadequate for the times.“Many policies alleged, the prudent in-house counsel E-discovery SWAT team I find are five to eight years old,” he says. would encourage the use of external Peg Duncan recommends that inside “They haven’t been revised, and you know forensic investigators with experience in counsel enlist the following people in an how technology has marched forward even gathering and processing the type of infor- e-discovery preparedness effort: within [the last] five years.” mation involved,” she says. Duncan notes that businesses need to Records and Information Management treat systems like Microsoft Sharepoint dif- Rate skills over cost control (RIM): to establish information manage- ferently from simple shared drives on “In-house e-discovery offers the advantage ment policies, practices and retention the network. She also looks beyond of control over costs — at least superficial- periods technology to hot-button issues in ly,” Duncan notes. “However, you need Audit: to review compliance with RIM specific industries,such as food contam- knowledgeable counsel and specially trained retention and destruction ination or other product liability matters. IT, along with good project management IT: to mind the electronic stores That can prompt new document retention skills and an aptitude for detail work.” CFO: to determine what initiatives can be policies, such as tracking e-mail of people funded and which will have the most closely involved with emerging issues. Monitor the e-discovery process impact on reducing risk in an environment “You’re not putting a litigation hold in Even if e-discovery service providers handle of limited resources. place,” Duncan says. “You’re just being the entire process,“lawyers should not step aware that others in your industry have been back,” Smith says. “E-discovery vendors In addition, everyone in the C-suite needs found liable and you could be too.” don’t get the litigation side. Outsourcing to be briefed on the importance of e- does not get you away from the problem that discovery initiatives and litigation holds, Produce only what’s required this could cost you a lot of money. so they can spread the message with Massive volumes of electronic information Somebody must be in charge of the vendor.” authority throughout the organization, have led to “brute force” reviews of large Duncan adds. volumes of electronic documents, which Designate an in-house can drive litigation costs so high that liti- e-discovery manager gants settle out of court. In certain large corporations, that “some- Duncan doesn’t feel this should be the body” is a lawyer whose daily work centres case.“The richest source of relevant infor- on e-discovery. That person, according to mation will be the documents held by the Duncan,“becomes a bridge between out- Seek synergy between core custodians from the core time period,” side counsel and the client in the discus- e-discovery projects says Duncan, who advises studying these sions about early case assessment, scope of and other business objectives documents before designing a search for discovery,determination of time frames and Businesses of any size can benefit from other relevant documents. custodians, and so forth.” even a few e-discovery-readiness policies. Don’t expect candidates who already For instance, having executives travel Outsource e-discovery tasks know the job.“There’s no e-discovery class with forensically clean laptops and smart- when necessary in law school,” Burney points out. Duncan phones reduces the number of devices to “I’m starting to find distinct areas of e- lists risk assessment, cost-benefit analysis search during a discovery effort, while discovery that are great for in-house coun- and project management as core skills offering outsiders fewer windows into pro- sel, while other aspects must be out- needed for the task. prietary company information. sourced,” says Burney, who suggests inside In Smith’s opinion, preparedness comes counsel handle collection and document Assemble an internal down to a 21st-century document man- management (“They know what is relevant e-discovery team agement system.“Large firms develop sys- and what isn’t.”) while outside lawyers The internal head of e-discovery also assem- tems of document preservation before liti- review documents produced. bles and co-ordinates an internal e-discovery gation that will not only benefit them in “This isn’t an all-or-nothing decision,”he litigation response team, whose members litigation, but also from a management says,adding that any“insourcing”be subject come from across the organization and bring standpoint,” Smith says.“To build a system to the corporation having the staff and skills a variety of skills to the task.“When some- to protect against litigation isn’t enough.” to handle e-discovery. thing does hit the fan,there’s a group of peo- Duncan offers a caveat: “If fraud is ple that comes together,” Burney says. Luigi Benetton is a freelance writer inToronto. AUTOMNE 2009 CCCA Canadian Corporate Counsel Association 15