Canadian Lawyer

18 M a r c h 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m by Dera nevin tECh support 10 things lawyers can do to make e-discovery easier for clients i 've been speaking a lot recently with in-house counsel and clients about some of their pain points relating to e-discovery. While the high cost of e-discovery (which I've written about in other columns) remains the primary issue for clients, I've developed a list of other concerns that are pri- marily process-related. Attention to some or all of these can spare cli- ents headaches, and may also assist in avoiding unnecessary costs. Remember legal hold notic- es are sent to, and read by, the company's employees. These need to be interpreted by and acted on by front-line person- nel. Draft them that way. Avoid legal jargon. Make sure the notice is easy to understand and high- lights what the employees need to do, and what is expected of them. It's helpful to work with the client to draft the legal hold (they may even have a standard form for this) to get insight into how the clients and their employees talk about and understand the issues and related documents. Avoid framing legal hold notices by legal issue. Clients and busi- nesses generally do not organize their business and its records by legal issue, and that is also not how employees understand the records they work with. Instead, break down the legal issues into the kinds of document types and catego- ries related to the evidence required to prove or disprove each issue. Employees can generally relate to and understand document types and document catego- ries. However, ensure the converse: make sure all the legal issues are represented by the document types and categories you ask to be preserved. Be specific in identifying what documents must be placed under legal hold. For example, instead of just "banking records" try: customer account agreement at branch number 123 in October 2013, account statements, account opening documents, signature cards, cheque images, etc. And instead of "hospital records" try: ambu- lance reports, admission reports, doctors' notes, nurses' notes, pathology reports, X-rays, patient discharge, reports, etc. Custodian interviews are not always pro forma work that can be delegated to the lowest-cost junior lawyer who knows nothing about the facts or the law. Custodian interviews can be "mini-discoveries" that require understanding to be done properly. While I always recommend using templates or checklists to start cus- todian interviews, it's helpful to have experience to know when to move off script and ask key questions. The point of e-discovery is evidence. So, understand the pleading rules and causes of action and defences for the kind of matter. (If applicable, read the jury instructions.) Think about what evidence will be required to prove or disprove claims. Stay relentlessly focused on that. Ask for permission before doing extensive IT or records custodian interviews. It's rare a company does not know its own IT systems. It's more likely the first person you do speak to is not the best person to answer your questions. In some larger corporations, there may even be specific people des- ignated for this work. And please don't ask for a "data map" and think the job is done. Most data maps are architectural in focus and may not reflect the ability to search or retrieve content. Not only do you need to know where the computers are, but also what they contain, what's in and attached to them, how what's inside can be searched, and how it can be retrieved. 1. 2. 3. 4. 5. 6.

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