Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50880
advises clients on what's needed for liti- gation and the how-to of collection and processing. "The volume of litigation is critical along with a corporation's own internal ability to manage the collec- tion. Lots of clients do not have enough litigation. Even if they experience a large and occasionally significant piece of litigation, they'd rather send it out because it's not their area of expertise." Dominic Jaar, president of Ledjit Consulting Inc. in Montreal, specializ- ing in electronic discovery and information manage- ment, agrees. "A com- pany that gets sued here and there may be better to reduce cost and risk by entering into an agreement with a service provider that understands the pro- cess, but a corporation in the business of being sued often should do at least part of the process inter- nally because of the huge costs involved." Jaar puts a great deal of emphasis on able to make exact copies in the face of actual or potential litigation." In some cases, the need for confiden- tiality might be the clincher. Some ser- vice providers take all the information off site. If they are U.S. based, and they take it across the border, it becomes subject to the all-pervasive powers of the U.S.A. Patriot Act. Wortzman Nickle generally avoids this by setting up mobile units in-house. "We had one client with extremely commercially security to cross-examination. They know so much else about the company's infrastructure and security, that there is some danger in that." Once these general factors have been examined, it still remains to be decided if cost considerations are going to have the final say. "To do the identification, preservation, collection, and processing in-house you need to increase your head count," says Jaar. "There are so many places data might be hiding. Data can To do the identifi cation, preservation, collection, and processing in-house you need to increase your head count. There are so many places data might be hiding . . . Data can come in on a daily basis and be purged at the same rate, so you have to learn how to preserve an active database. – DOMINIC JAAR, Ledjit Consulting Inc. litigation readiness. "We work in-house educating companies to improve pro- ductivity and efficiency on a daily basis. We look at their information structure and improve the process for the next case. It is more costly the first time but it forces the client to understand what they can do themselves, which has a huge benefit." The potential volume of docu- mentation involved can also be a big consideration. Tom Donovan, a partner and chairman of the general litigation practice group at Cox and Palmer in Halifax, says if you have a multi-source site of tapes scattered all over the coun- try or North America you have to go external, but even then it is essential for any large corporation to have a fresh look at their systems. "They probably have all the resources already and just need to understand the new mode. They must modernize document reten- tion schemes so the documents are easier to produce and they must be sensitive information, being transport- ed in armoured trucks where possible," says Wortzman. "Everyone went in, and that's not uncommon." This also avoids the problem of los- ing control of the data. When Jaar was an in-house lawyer with Bell Canada, he had a serious problem with sur- rendering data to a third party. "It is the black-box effect — you don't know what's been done to it. As the litigator running the case, if the other side asked how it was processed, it would have been hard to answer." Sometimes the third-party vendor can be engaged in an oversight role, which has an added benefit when it comes time to testify. "Say there's a com- pany that wants to do the collection, processing, and searching," Wortzman says. "But you know the other side is going to criticize the collection and search terms. The third party oversees the whole process and provides an affi- davit saying, 'Here's what we did and why it's defensible.' You may not want to expose an employee in IT or corporate come in on a daily basis and be purged at the same rate, so you have to learn how to preserve an active database." Donovan points out that a small company may not have the IT support to manage this and can't afford to pay vendors. "The law firms acting for them may provide the service, but few have the capacity right now," he says. "The practising bar is not equipped with the technical interest or knowledge to understand the concept. Until the prob- lem is forced upon them, they will avoid it. Even though the environment is full of digital records, and the take-up in text use and social networking has been exponential, most of the bar is not keeping up with technology." Jaar sees this lack of interest at the weekly conferences he delivers on e-dis- covery and litigation readiness. "Ninety per cent of attendees are in-house coun- sel and only 10 per cent are outside law- yers," he notes. "All my colleagues who are general counsel at other corporations have the same issue. There's a need in the market but it won't be filled in the INHOUSE JUNE 2009 • 37