Planning avoids after-the-fact panic

Help your clients to see the necessity of formulating and then implementing a formal strategy for electronic document retention that will allow them to access relevant information should they be sued.

This includes the insidious e-mail correspondence, which has multiplied the number of potential e-discovery documents manifold.

That's the advice from top litigation experts, responding to the after-the-fact panic that is gripping the litigation world as clients search, often in vain, for relevant and missing documents that have been deleted. Often, when hard drives fill up, decisions on whether a document should be retained are made based on space rather than potential importance.

"It's only been a period of about 10 years since companies have moved from paper record-keeping to electronic record-keeping," says Norm Letalik, a litigation partner at Borden Ladner Gervais LLP.

He notes that high-profile cases in the U.S. have led to a demand south of the border for production of sometimes tens, if not hundreds of thousands, of electronic documents.

"It's not unusual for litigation counsel in the U.S. looking at what has been produced by parties adverse to their client's interests to say, 'I'm surprised there isn't an e-mail about this,'" says the Toronto-based Letalik. "In Canada, we are now standing at the precipice, looking to see just how dramatic the demand for documents will become."

In fact, technology has forced a change in terms of the whole procedure of collecting documents, says Andrew Terrett, IT project manager and a non-practising lawyer at BLG.

"While initially litigators might have viewed e-discovery as an extension of paper-based discovery, this has not proven to be the case," says Terrett.

The challenge today is to capture all the relevant electronic documents in an electronic world where duplicates and near-duplicates (including forwarded messages with comments added in from the sender, for example) make the task onerous.

And unlike even five years ago when clients' e-mails resided on their office computer systems, the ability to work off-site electronically has multiplied the potential number of places to look for information, adds Letalik, whose practice focuses on product liability.

"There are many more places to look for documents: the hard drive of the client's office at home or their BlackBerry, for instance. This can be problematic when an officer of the corporation is swearing an affidavit that he or she has made all reasonable efforts to track down all relevant documents."

Educating clients to think about retention of documents generally, and certainly, at the first sign of a lawsuit, is a key service litigation lawyers can offer to differentiate themselves from the competition, says Peter Henderson, a partner at Kramer Henderson LLP, a litigation and advocacy boutique firm in Toronto.

"Even small companies develop a purging system for information. It's imperative that companies make certain there is a designated person ensuring that all information relevant to the lawsuit is retained."
Equally important is bringing litigation lawyers and staff on board too, says Henderson.

 "In the past, a large commercial case might involve 100 documents. Today that same kind of case could involve 100,000 documents, with 50,000 or more of them likely to be electronic," says Henderson, who is chairman of the civil litigation section of the Ontario Bar Association.

 "If law firms aren't using current technology at their own firms, then what's involved in managing a case means obtaining hard copies and then employing somebody to organize and index all the documents."

In fact, a difficult question for law firms today is how much electronic document handling should be in-house and how much outsourced, adds Letalik.

 "Recently we sent out a [request for proposals] to a number of firms [that] provide a service whereby they will work with your clients to find all the relevant documents and also have tools to help lawyers sort through all the documents. Some of these companies also have teams that are trained in coding the documents that can then be put into your firm's litigation management program.

"Bigger law firms will likely try to do part of this in-house. What nobody is clear about is how much you do in-house and how much you farm out," he says. "Even in a firm such as ours where we have an internal staff, including a number of paralegals, there are times when your staff is overloaded due to a large volume of cases."

And when it comes to software, legal firms need to ask hard questions about what is economical in terms of staff time and also investment in technology.

"There are number of key questions a law firm needs to consider," says Terrett. "Is this a core competency that our litigation department wants to develop?

Is there a business case? Is there a return on investment on some of the more esoteric software? If a case involves hundreds of backup tapes in WordPerfect for DOS, does your firm want to spend time to convert this program to your system or is it better to hand them to an outside firm that specializes in this sort of work?"

In addition there is the credibility factor.
"You have to satisfy yourself that the outside vendor has proper procedures in place to handle the documents to your criteria," he says.

The questions posed are universal among Canadian litigators.

"Just because a law firm is smaller does not mean they are not going to have cases with a large electronic document component," Letalik sums up. "The questions we are posing are important for the entire litigation sector."

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