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becomes more expensive." That's why it is critical to "reduce the size of the col- lection before it gets lobbed to outside counsel or an outside service provider for review. he says, when it comes to e-discovery. If the matter gets to trial and a wit- ness says, "'I had this document and I turned it over to legal department, but opposing counsel says they never received it,' that is one of those 'oops' moments." Be prepared to "dedicate the time and the resources when look- ing into a system." An enterprise solution is not cheap. "There is a certain amount of risk," " The software costs thousands of dollars and implementation can run into the million-dollar plus mark with staff time and resources and hardware. 9. Technology is only a tool MacFarlane says that "technology is a tool that can assist in efficient management, but it can never replace having a complete understanding of the issues in dispute. So legal departments need to tread " carefully. Jaar says about two-thirds of investment today is going into the collec- tion and preservation side of the e-dis- covery equation; the remaining one-third is going into review and analysis software. He says legal departments think, "we are going to buy the software and we're going to be done. Having software does not mean you have the capacity to use it efficiently. You cannot use it once a year. You need to use it constantly. he sees legal departments make is they overlook aspects of the e-discovery pro- cess when purchasing their system. For Rothman says the biggest mistake " example, they don't properly address col- lections or legal holds. McLean says important thing to remember when con- sidering technology is that "there is no magic solution to any of this. There is no piece of hardware or software that can be implemented and all of your problems go away. the tion and a procurement process to nar- row down the options and identify the top vendors. Some vendors provide the entire suite of products, which include identification, collection, preservation, legal holds, early case assessment, pro- cessing, reviewing, and analyzing doc- uments. Other vendors will form joint ventures with counterparts who each have part of a solution. He says you need to figure out what His firm used a request for informa- " about their needs and changing technology. Jaar warns "it is impossible to keep pace with technology." is one of the hot buttons as a way to search documents. Also, the software world is moving to a service model. Rather than a corporation making a capital investment to buy software and maintain it, software vendors are now providing the hardware, maintenance and support. Cloud com- puting is also going to impact e-discovery in the future. So it is important to work with the IT department For example, two years ago no one was talking about predictive coding. Today, it whether it is better to buy or rent the technology. You don't want to be stuck with an Edsel, when everyone else is driv- ing a Cadillac. to determine model works best for your company. "We do a lot of litigation internally so our litigation lawyers wanted a tool that would enable us to do early case assess- ments on the data to get a sense of what the litigation looked like. " 10. Maintain a proper head count Jaar says look at the human factor, and ask yourself if you have enough people and if there is a sufficient workflow to justify the investment. It' can't afford to send people to conferences to keep them abreast of new develop- ments, then insourcing the process is a "non-starter for most organizations." 11. Think ahead Legal departments need to think ahead ... and wherever you need to be in Canada. Your lawyer. Your law firm. Your business advisor. CALGARY | TORONTO | EDMONTON | OT TAWA | BEIJING | DUBAI | ABU DHABI | DOHA s a new field, he says. If you 12. Change management Finally, McLean says that a successful implementation means having people dedicated to the task of managing the process. "There needs to be a recogni- tion that some sort of change manage- ment is going to have to be involved. Employees have to understand that when a legal hold notice is sent out, it requires people to react immediately and if they don't "there are going to be consequences." Whether or not you think your legal " department is ready to implement an e-discovery system internally, the reality is e-discovery has become part of the fabric of litigation and is not going away. Says McLean, more of your time and it is something that you are going to have to devote more of your attention to. " IH "It is going to take up BennettJones-3_IH_Aug_12.indd 1 CANADIANLAWYERMAG.COM/INHOUSE OCTOBER/NOVEMBER 2012 • 12-06-28 10:55 AM 27 N

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