The volume of Electronically Stored Information (ESI) continues to grow
unabated. How does 2.7 zettabytes[1] sound? That is the estimated volume of electronically
stored information globally. Such information spans web sites, social media,
email, document repositories, databases, file systems and shared drives.
Electronically stored information is discoverable regardless of format
and location. [2] Virtually all jurisdictions in Canada have
incorporated The Sedona Canada Principles
Addressing Electronic Discovery (the “Sedona Canada Principles”).[3] For example rule 29.1 of the Ontario Rules of Civil
Procedure requires parties to identify, collect, preserve and produce ESI that
may be relevant and material in a pending litigation.[4]
The cost of ESI production can be prohibitive. It is estimated that the
average cost to defend a corporate lawsuit exceeds $1.5 million per case.
Moreover, failure to produce ESI may result in adverse inferences. In such
cases courts may grant a preservation order in the event that the moving party
has reason to believe that relevant and material evidence may be destroyed the litigation
hold notwithstanding.[5]
Effective document and records management best practices are of
paramount importance for mitigating ESI related production costs. An Electronic
Document and Records Management System (EDRMS) is an integral element of mitigating
e-discovery risks. Equally important is implementation, communication and
enforcement of a consistent set of policies and methodologies associated with
the management of ESI. A universally accepted framework is the Electronic Discovery Reference Model (EDRMS)[6]. The model consists of an end-to-end lifecycle that
encompasses identification, preservation, collection, processing, review,
analysis, production and preservation of ESI.
Implementation of a robust ESI preservation strategy has many financial
benefits as well may provide a shield against “fishing expeditions” by opposing
counsel. For example the ESI guidelines provide that “a party may satisfy its
obligation to preserve, collect, review and produce electronically stored
information in good faith by using electronic tools and processes such as data
sampling, searching or by using selection criteria to collect potentially
relevant electronically stored information.”
Technology plays an important role in helping organizations minimize ESI
production costs. A study by the eDiscovery Institute[7] outlines a number of technological approaches that
can significantly reduce ESI production volumes by as much as 92%. These steps
include the use of hashing algorithms to identify duplicate files, the use of
standardized meta-data and classification models[8], use of email threading software to identify patterns
relating to initiating, forwarding, replying and attaching documents to emails.
An emerging ESI tool is what is generally referred to as predictive
coding. Traditionally discovery is a linear and time consuming process of
lawyers visually and manually reviewing many thousands of documents that may be
deemed to be responsive or privileged. Predictive coding is a technology that
automates the review process through the application of advanced semantic
analysis of text and meta-data within sample documents analyzed by the software
The system then “learns” how to accurately categorize and classify a larger
universe of documents as responsive, non-responsive and privileged. A recent US
judgment[9]affirmed the value of predictive coding as” more
accurate -- and 50 times more economical -- than exhaustive manual review.”
A particularly useful and comprehensive review of eDiscovery
jurisprudence in Canada may be found at:
[1] According to International Data Corporation, the total amount of global data is expected to grow to 2.7 zettabytes during 2012. This is 48% up from 2011.[2] The Canada Evidence Act defines an electronic record or document as“data that is recorded or stored on
[5] So called Anton Piller Order a remedy give to the
moving party “should have inspection so that justice can be done between the
parties… (and)…there is a grave danger that vital evidence will be destroyed”.
[8] In the context of the Canadian Federal Government
compliance with Treasury Board IM and RK policies and directives are relevant.
This blog is providing good information. Thanks Electronic discovery process
Great ideas. Another cost-effective solution is FTI Technology's ediscovery software. Give that a try if you have time.