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e-discovery project in which those documents were first collected. In practice, proper disposition of documents takes a lot of work and benefits from advance planning. Documents that continue to exist at the client, law firm, or other third-party sites ought to be handled in accordance with the client's document retention and destruction policies and schedules. First, the client should release all case-specific litigation holds over those documents, if it is appropriate. However, consideration should be given to the treatment of original documents that continue to be with the client, as well as copies held for preservation and use in the litigation. Where original documents may need to be kept under document retention rules, it is possible copies are eligible for destruction. Similarly, if the client's IT has been involved to eliminate auto-deletion, IT may be required to re-engage the autodeletion. Custodians of documents may need to be warned that litigation holds are being released, as they may have changed their work habits during the hold period and need time to prepare for the re-introduction of auto-delete (particularly for e-mails). An inventory should be done of all the locations outside the client's where e-discovery data resides. Requests for the return or certified destruction of the documents should be made to anyone who has a copy of them, including external counsel, e-discovery vendors, and experts. Documents in the hands of experts should be returned or destroyed, and experts should certify the return or destruction. Documents with vendors should be scrubbed and purged, with vendors certifying they have done so. Law firms should have practices in place that allow them to retain work product, but not the underlying documents. In all cases, specific inquiries need to be made to ensure there are no copies in archival or back-up systems. Parties that have not provided for the return of documents following litigation and incorporated this into discovery plans may need to make those arrangements with opposing counsel at the end of the litigation. Consideration should be given to whether the return or certified destruction of documents needs to be incorporated in any settlement documentation, or if court orders providing for this are required. Care should be taken to ensure the inventory of document locations is reviewed and compared against the returned documents or certifications of destructions. Projects should be kept open until all documents have been returned, or all destruction has been certified complete. The e-discovery project manager or external counsel should be monitoring this process and reporting on document windup to the client. Finally, the end of an e-discovery project is an opportunity to perform a postmortem or after-action review. Such post-project examinations with different stakeholders can be useful. E-discovery teams may want to perform after-action reviews focusing on operational performance, however, they can also involve litigation counsel — and clients — to review overall project performance. After-action reviews can involve comparing the project plan to what actually happened and understanding the reasons for any deviation from the plan. They offer an excellent chance to review project metrics and also serve to confirm case-closing metrics. For example, how much data was collected and how much has been received for destruction? Were preliminary document volume estimates accurate, and if not, why? Were the various project states — such as collection, processing, and review — performed timely? Was the team adequately staffed? Was the budget estimate accurate? Post-mortems are also opportunities to review what worked well, and incorporate those practices into standards, and correct ones that did not work. Teams should also look to see if any experimentation occurred and what the outcome of it was. At this stage, I review my plan, including the discovery plan, to determine whether anything should be added as a standard clause in future discovery plans. This is also the time to revise operating manuals, standard checklists, and other standardform documents. NEW EDITION ONTARIO LABOUR & EMPLOYMENT LEGISLATION, 2013 EDITION CONSULTING EDITORS: McARTHUR VERESCHAGIN & BROWN LLP Get fast, easy access to all the current statutes relevant to Ontario workplaces. 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Nevin is managing counsel, e-discovery, TD Bank Group. She can be reached at dera.nevin@td.com. The opinions expressed in this article are her own. www.CANADIAN CANADA LAW BOOK® L a w ye r m a g . c o m J u ly 2013 19

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