Canadian Lawyer InHouse

MAY 2017 20 INHOUSE for something larger and complex, you also have to balance the burden on the compa- ny's time as well." Discovery proceedings can be highly dis- ruptive to management. In deciding on the appropriate solution, the key criterion has to be minimization of disruption. "If you have an e-discovery solution that's not be- ing run by someone who can simplify things for participants, even though they may be saving money at the end of the day, you may be costing more to the organization in terms of down time and the need to explain things. To me, that's where the law fi rms would have a superior offering because they can manage that for you and minimize that disruption," says Grimaldi. "For a lot of these investigations, you don't even need an e-discovery fi rm. The regulator will ask you for certain types of in- formation and, with proper email fi lters de- veloped by your IT department, if it is good enough, you should be able to harness that information without having to layer on top another fi lter. This is pre-litigation — fi les where data gathering — e-discovery can be a generalization — some things have e- discovery-like behaviour, but it's simply data gathering at the request of a third party." A key area Girmaldi says in-house will need to focus on in the future is the ques- tion of liability when using new tools such as AI and other machine-learning tools. "Someone needs to be responsible if there is an error. The law society rules make it pretty clear the lawyer in charge is ultimate- ly responsible. I think, at least in the short term when legal departments are consider- ing using a lot of these tools, it may make sense to have them come through an outside fi rm so you can hold someone accountable for mistakes. Between the law fi rm and the AI fi rm, the liability will always rest with the legal fi rm," he says. "I think it's a key point law departments need to focus on. It may draw them to the hybrid model of having an outside fi rm deploy the AI tools. It's not getting a lot of air time right now, but these tools are revolutionary but not yet perfect." At Clyde & Co in Montreal, partner Jo- Anne Demers says on small fi les the fi rm can process and host data in-house. In larg- er matters with multiple terabytes of docu- ments they are looking at other solutions for clients. By using the services of independent legal contract lawyers and a dynamic pool of lawyers reviewing the documents, the fi rm has came up with a new approach. With the contract lawyers and using an e-discovery platform, they have worked on a number of large fi les with greater effi ciency. "We meet with the review team every week and dis- cuss the issues. As the group evolves they become very sophisticated and can identify what is key to a fi le — that is very important. Once of the key issues is documentation re- view. The devil is in the details. Once you have a team that owns the project they will pay attention to what you are reviewing and that's when you fi nd the ace in the hole that will help your case," says Demers. At Royal Dutch Shell, an e-discovery team was created in Houston in 2004 when the Zubulake line of decisions came out of the Federal Court in New York. Zubulake v. UBS Warburg was a landmark decision in the area of e-discovery and the burden of costs for such discovery. "While electronic information had been the subject of discovery prior to 2004, the expectations around preservation capabil- ity changed with Zubulake. Additionally, technology rapidly evolved from the late 1990s to today making electronic discovery • When you get hit with a discovery project, engage help from outside providers who have discovery management expertise and do it at an early stage even if they aren't the ones who will be doing the document review. • Ask external counsel how they are going to save on costs and what the plan will be. • A case is only as good as its documents. Ask what kinds of documents are involved. What are you doing to get rid of useless data? • Ask for a budget and make the fi rm track to it every week. What is the per-document rate? Inform yourself so you're not surprised when the bills come in. • Be prepard to spend time planning and getting your head around who the important people are on the fi le and where the data is stored. • Lack of planning causes most problems. Know where to fi nd all the data you need. • The software doesn't run itself. Disasters can ensue if you don't have the right resources and training internally. You can fi nd yourself in situations where you have bitten off more than you can chew. • Look at what's out there. Some vendors offer managed services that don't require the degree of upfront investment and provide scalability. • If choosing to invest in software, remember it's always evolving. You don't want to be tied too closely to a single software solution. • As a law department, you can't be running multiple pieces of software, so that should be taken into account when the system is being built. IF WELL MANAGED, E-DISCOVERY DOESN'T HAVE TO BE ENTIRELY PAINFUL.

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