Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m M a r c h 2 0 1 4 19 Prepare and create budgets and project plans — every time. A failure to plan is a plan to fail, and generally costs clients money. Tracking an e-discovery project against a plan is a good way to determine when things are not going according to expectations. Encrypt all of your client's data — every time. Particularly in transit. Ask your client, or figure out, if the data also needs to be encrypted at rest. (Encryption at rest may be particularly important for health-related data, or data from certain regulated industries.) Be clear about what you are doing with search terms. Be clear with the client, opposing parties, and the court. Misstatements in this area cause confusion and rework. Searching can be done in so many ways and at so many points in the e-discovery process, it inher- ently leads to confusion about what is going to be, or has been, done. Be particu- larly clear about when you are using search terms as an artificial filter, for example at the point of collection or during pre- processing. Using search terms at these stages (rather than once all the data is loaded into a litigation support database) means if a search term doesn't hit on something, records are left behind so a potentially relevant record not found by search terms will thereafter not be avail- able in the e-discovery process. If you are going to do this, (which is appropriate in some circumstances) protect this deci- sion with a documented meet and confer agreement or in a court order. Better yet, use knowledgeable people to devise search strategies and terms. Use rule-based processes avail- able to control or object to the format of productions. Do not agree to produce documents in a format the client can't accommodate, and propose a form of production the client can accom- modate. Try to avoid going into document review — or production — without having production format confirmed. Clients dis- like hearing after production there is now an avoidable dispute about it. What readers might notice is most of the above tips are not technology-driven. I am a big fan of the appropriate use of technology, but I recognize technology in e-discovery serves primarily as an ampli- fier. It will amplify the effects of good ideas and processes but will similarly intensify the pernicious consequences of poor pro- cess design. Using good e-discovery prac- tices can be the most effective way to avoid e-discovery challenges and unwanted costs. I also believe most clients prefer it if you discuss up front with them whether e-discovery is an area of focus for you and whether additional help is needed, either from a specialist firm or service provider. Others have said they don't need their litigators to be all things to them, but they do need to understand the risks to the client and its business of whatever the lawyer proposes. Clients are not well served by negative surprises. Asking for e-discovery expertise may save the client headaches and costs over the course of the litigation. Dera J. Nevin is managing counsel, e-discovery, TD Bank Group. She can be reached at dera.nevin@td.com. The opin- ions expressed in this article are her own. 10. 7. 8. 9. Untitled-6 1 14-02-06 1:55 PM

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