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CCCA_V6No4_Col-McCarthys-V2_CCCA 11/26/12 5:49 PM Page 53 Legal Update – McCarthy Tétrault LLP A Better Way to E-Discovery By Eli Mogil ollecting, organizing and producing (email, archives, back-up tapes)? relevant documents. Unfortunately, that Celectronic data is expensive. For many With improved data organization in legitimate worry may lead to a lack of organizations, the spectre of that exercise is place, it will be much easier for the organ- rigour in producing what is relevant. As sufficiently overwhelming that it may play a ization to identify the relevant custodians one judge put it during the conference,the role in deciding whether to defend or pros- and target the right areas of interest,sparing parties need to get out of the “vacuum ecute an action. it from paying for the imaging of everyone’s cleaner” approach and focus on what is Thankfully,there are new developments computers or entire servers. Business and truly relevant. in technology, strategy and court guidance IT personnel will also be spared the time of There are ways that corporate counsel that can help in-house counsel manage e- searching through silos of data. Finally, can reduce review costs. First, demand that discovery and reduce its cost. At two external counsel will be required to review your counsel develop a theory of the case recent bench-bar seminars (an Ontario fewer documents, saving significant costs. before documentary discovery so that the Commercial List Users Committee CLE While there will be upfront costs in the search can be as targeted as possible. Even session and an e-discovery seminar at reorganization of data, the costs will be the most complex cases rarely turn on more McCarthyTétrault LLP),Commercial List more than made up by permitting a tar- than 50 or so documents. Second, for some judges and e-discovery experts outlined geted approach and saving personnel time. cases, consider bifurcated productions with some of these developments. Once the actual costs of a recent project the most important documents produced are tracked, the organization will be able first.The first tranche may narrow the issues How to moderate e-discovery costs to make an internal pitch for improved in dispute, be sufficient to proceed to dis- E-discovery costs comprise internal time data organization. coveries, or even support a mediated settle- spent identifying where data is kept, costs ment.Third,use Discovery Plans as offensive to third-party vendors to capture, organ- 2. Better technology tools.The Discovery Plan is a platform to ize and store data, and costs to external Review costs are the most expensive part distinguish the truly relevant from the counsel to review data. of e-discovery. Since the cost of labour potentially relevant. (including offshore lawyers) for review While there is no specific cost conse- 1. Better organization of data time cannot be reduced much further quence for improper conduct surrounding A recent RAND report found that most in- (there is a limit to how fast anyone can e-discovery (i.e., demanding a “vacuum- house counsel did not know their internal read), the remaining opportunity to cleaner”approach from the opposite party), spend for collecting data.That includes the reduce review costs is to use new tech- the Rules require the parties to comply costs of a litigation hold; the time incurred nologies to reduce the amount for review with the Sedona Principles not to “length- by legal,business and IT personnel to locate and predict the review. en unnecessarily the proceeding.”The aim relevant documents and undergo a custodi- A ‘crawling’ software suite can be used is that unfair demands on the opposing an interview; the costs of the actual review to reduce the amount of data to be sent party or refusal to use digital evidence will (with internal and external counsel, and for review. For large data sets, which like- result in cost consequences.Make clear that third-party vendors); and the costs of pre- ly contain a lot of non-responsive docu- those cost consequences will be raised. serving the data until the matter is over. ments, ‘predictive coding’ software can The first step in moderating these costs is improve the accuracy of review rates.This This article is the second part of a two-part for the organization to take an inventory of software, while in its infancy, seeks to series on e-discovery and electronic litigation its data storage and information governance mimic counsel’s review based on sample (see the Fall 2012 edition for part one). so it can answer the following questions: counsel reviews. Ask external counsel • Who has what information and where is with knowledge of e-discovery about Eli Mogil is an associate in McCarthyTétrault’s it (a data map)? these technologies. Litigation Group inToronto.He maintains a gen- • How long is data kept (retention proto- eral litigation practice, with emphasis on complex cols and auto-delete protocols)? 3. Better analysis of what’s important commercial and professional liability issues. • Are there multiple and duplicate copies Lawyers worry about not producing all the (emogil@mccarthy.ca) HIVER 2012 CCCA Canadian Corporate Counsel Association 53