Focus: In-house counsel advised on e-discovery strategies

Having knowledge of electronic discovery issues is as indispensible for in-house counsel as it is for external lawyers.
“When I left Wortzmans about a year ago, people said, ‘Aren’t you going to miss doing e-discovery?’” said Susan Nickle, formerly of Wortzman Nickle PC and now general counsel for the  London Health Sciences Centre.

“In fact, I probably do as much e-discovery as I did when I did it full time,” said Nickle during remarks at the Ontario Bar Association’s E-discovery Institute this fall.

Nickle emphasized that in-house counsel have to have at least a basic understanding of e-discovery and the various technologies around it.

“It’s not sufficient to simply say, ‘That’s what we hire our external counsel for,’” she said.

If lawyers wait to retain external counsel in reference to a claim, some of the documents and information necessary to respond to it may be missing.
“Sometimes, external counsel aren’t hired for a few months,” said Nickle.

“You could be in real trouble. There’s got to be some internal accountability in the legal department to instruct IT and to instruct some of the key custodians.”

Nickle recommended that if in-house lawyers don’t feel comfortable with their knowledge of e-discovery, they should bring in an outside expert as soon as they can.

“Get an expert in to help you right away if you’re really a Luddite and no harm, no foul,” she said.

Kate Manning, a lawyer at Susan Wortzman PC, tells Law Times it’s essential for in-house legal teams and outside counsel to hit the ground running when a claim comes up.

“A big point for litigators now is you need to talk to your client early on and really learn more about your case sooner than you might have before,” she says.

“Talk to their IT department, find out what records are out there, find out where they’re stored, find out what it means to get them back.”

In order to keep costs down, Nickle said it’s essential to have an information management strategy in place from the beginning.

“Get your records in order, hire a good records management person, and it will really keep your sanity and keep your costs down from an organization perspective,” she said.

Whether it’s a litigation matter, regulatory investigation or an audit, Nickle said the same principles apply.

“It’s the ability to get to critical business records when you need them in a manner that is time- and cost-effective,” she said.

According to Nickle, information management is “really a team sport” that requires participation from a number of aspects of an organization.

Christine Ardern, president of Information Management Specialists, agreed.

“When we look at our information governance, what we’re really seeing is that it’s no longer OK for me as a records manager or as an information manager to be trying to do this on my own,” she said.

Nickle said there’s also a good business case for having an information records management system in place. She noted employees often spend many hours a week simply looking for the right information.

“The key again is back to business reasons. You’re not going to manage your records solely on the fear that you’re about to get a statement of claim through the door,” she said.

While in the past it was common practice for in-house legal departments to preserve as many documents as they could, Nickle said the exponential increase in the volume of electronic information means that’s no longer the best practice.

“We’re getting rid of nothing; that’s the problem,” she said.

Instead, Nickle advised that if an organization has a good records management system in place, it’s a good idea to dispose of business records at the end of their useful life as long as it has complied with limitation periods and regulatory requirements.

“We keep everything for 20 years or 25 years because people think that’s an easier way to manage their records,” she said.

But if there’s a lawsuit, said Nickle, and the other side wants 10 years of records, an organization can argue that’s an unreasonably broad date range. Unless a court agrees, however, it’ll likely have to produce the documents.

If those documents were deleted through an established information management framework, however, Nickle said that would be a suitable defence for why it couldn’t produce them.

However, if the company simply can’t find the documents, the courts will be less forgiving.

“Courts have made some very strong statements around the need for organizations to have a handle on their records and it will not be a defence to a production request that you simply can’t find something or that it’s going to be difficult,” she said.

Having a good information governance system in place can also help protect against claims of privacy breaches in industries that hold sensitive customer data.
“It’s a much cleaner response when you can say, ‘We know where the information was, we are confident that it was not accessed or the people who accessed it had the right to be in there,’” said Nickle.

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