Canadian Lawyer

18 J u l y 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 j. nevin tECh support E-discovery and litigation support: there is a difference While there is overlap, they respond to different concerns and require different skillsets. R ecently I've been doing some discovery process design for law firms and corporations. In a few of these mandates, I've had to help clients sort through the differ- ences between e-discovery and litiga- tion support service offerings, and what that means for their process design. The functional designations of "e-discovery" and "litigation support" are often used interchangeably, but are different (though related) services and offerings. While there is overlap, they respond to different concerns and require different skillsets. E-discovery personnel may do aspects of litigation support (but not always!), while the reverse may or may not be true. E-discovery is often the domain of lawyers, while few actively manage liti- gation support offerings, leaving these to technical experts or specialized para- professionals. Then again, the collec- tion component of e-discovery is fre- quently the purview only of specialized personnel or technicians. E-discovery is the process and procedures of identifying, collecting, processing, and producing electroni- cally stored information. It's usually in response to a request for production in a litigation matter or investigation. ESI is broadly defined — because rules of civil procedure define "document" broadly — to include e-mails, docu- ments, presentations, spreadsheets, databases, audio and video files, and a wide range of other electronic materi- als. These can include those generated within social media and Web 2.0 plat- forms, and electronic miscellanea, such as login credentials, Internet cookies, processing transaction metadata, elec- tronic keycard login data, and so forth. E-discovery encompasses legal and technical requirements and processes, and including both these service dimen- sions within a project is advisable. Generally people understand spe- cialized technical expertise makes for effective e-discovery. Both the pro- cesses and the technologies involved in e-discovery are complex. There are many reasons for complexity. First, the volume of data corpora- tions (even individuals) are generating is large, and volume increases complex- ity. Second, ESI is often difficult to ratio- nalize and consolidate. There are many different types of ESI, each with its own properties and characteristics, and bringing the various ESI types together into a single platform can be techno- logically complex. Third, ESI is fragile, dynamic, and persistent: it is easy to alter because it is dynamic, yet it is fragile because improper handling can impair or change it unintentionally. Despite this fragility, ESI is also persistent and leaves traces of itself everywhere, requiring knowledge in how ESI can and should be handled to avoid issues of spoliation and evidence tampering. Fourth, handling ESI requires detailed understanding of retrieval and search techniques and technologies. Not all electronic information is search- able, or searchable in the same way or in a keyword kind of way, and the limitations and opportunities for search should inform all e-discovery strategy. Search limitations also increase e-dis- covery complexity, particularly as more powerful but complex search technol- ogy is becoming commercially avail- able within the e-discovery space (think "predictive coding" and "advanced ana- lytics" here). However, I recommend (and I am biased on this point) an e-discovery lawyer (preferably with a technical background) and an e-discovery tech- nical consultant prepare and execute the e-discovery requirements in con- junction with the substantive legal team. The legal dimension is necessary because questions of proportionality, burdensomeness, relevance, sufficiency, and evidentiary integrity involve ques- tions and interpretations of law. These legal questions require an understand- ing of the substantive law and of tech- nology to work through; answers can often be case-specific. Additionally, e-discovery gives rise to many other issues that have legal implications. From the client's perspec- tive (whether that is a person, company, or organization), e-discovery will always involve externalizing data, by removing it from where the client had control

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