Thursday, 5 April 2012

Minimizing e-Discovery Costs

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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
any medium in or by a computer system or other similar device.”
[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.

2 comments to “Minimizing e-Discovery Costs”

  • 16 April 2012 at 03:49
    BH INFO says:

    This blog is providing good information. Thanks Electronic discovery process

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  • 6 January 2014 at 19:08
    Jesse says:

    Great ideas. Another cost-effective solution is FTI Technology's ediscovery software. Give that a try if you have time.

    delete

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