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Streamlining Document Review & Production: Pitfalls and Best Practices

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Learn how your organization should streamline information governance and document practices.

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Streamlining Document Review & Production: Pitfalls and Best Practices

  1. 1. Osler Hoskin & Harcourt LLP Streamlining Document Review & Production: Pitfalls and Best Practices July 2018 Sarah Millar Alexandre Fallon
  2. 2. STREAMLINING DOCUMENT REVIEW & PRODUCTION: PITFALLS AND BEST PRACTICES 2 EDRM Discovery Model
  3. 3. STREAMLINING DOCUMENT REVIEW & PRODUCTION: PITFALLS AND BEST PRACTICES 3 Information Governance How an organisation promotes optimal behaviour amongst its members in the creation, organisation, management, storage and disposal of information, taking into account legal and business risk What does this mean? Crucial not just for litigation preparedness, but for: o Business Intelligence o Data security o Privacy
  4. 4. STREAMLINING DOCUMENT REVIEW & PRODUCTION: PITFALLS AND BEST PRACTICES 4 Information Governance for Litigation Preparedness Simple pre-litigation protocols greatly minimize cost and business disruption once litigation starts Good information governance practices in preparation for litigation include: Data Mapping Data retention policies and processes Litigation Hold Processes Set Team of Discovery “Responders” Internet, email, device usage policies
  5. 5. STREAMLINING DOCUMENT REVIEW & PRODUCTION: PITFALLS AND BEST PRACTICES 5 Document Management – Managing the Costs and Burden  Document Discovery often costliest process in litigation  Very few documents produced actually matter to case  Era of “Big Data”, Privacy and Security Breaches  Client engagement is crucial  Counsel need to understand technical aspects, cost implications and legal significance of document discovery process
  6. 6. STREAMLINING DOCUMENT REVIEW & PRODUCTION: PITFALLS AND BEST PRACTICES 6 Preservation & Identification  Identify and preserve sources of potentially relevant data and documentation o Structured data/databases o Email/chats/texts o Unstructured user data  Areas of greater risk: o missed data (can lead to spoliation claim) o over-collection (resulting in increased costs/burden)  Client engagement crucial: o Effective Litigation Holds o Involvement of IT Department at all stages o Custodians – even Senior Executives – engaged in task o In-house point person
  7. 7. STREAMLINING DOCUMENT REVIEW & PRODUCTION: PITFALLS AND BEST PRACTICES 7 Litigation Holds  Obligation to take reasonable and good-faith steps to preserve relevant data arises as soon as litigation is contemplated or threatened.  Duty requires a party to make a good-faith assessment of probable locations of relevant data.  Suspension of automatic file destruction policies may be required when litigation becomes reasonably foreseeable.  Failure to preserve can give rise to an argument of spoliation, which can lead to a rebuttable presumption that the destroyed evidence was unfavourable, a costs award or remedies based on abuse of process.
  8. 8. STREAMLINING DOCUMENT REVIEW & PRODUCTION: PITFALLS AND BEST PRACTICES 8 Litigation Holds  The timely issuance of appropriate litigation hold notices is a good way to demonstrate good faith efforts to preserve evidence.  Notices should be in plain language and set out clear instructions to recipients, including explicit details on the type of information that must be preserved, and alert recipients to the fact that information can be found in multiple locations.  Interviews of the initial recipients of the notice can assist in determining whether further recipients should be added.  Notices should be refreshed and resent at least every six months.
  9. 9. STREAMLINING DOCUMENT REVIEW & PRODUCTION: PITFALLS AND BEST PRACTICES 9 Litigation Holds In Québec:  the obligation to preserve relevant information is not as defined as in common law jurisdictions.  It’s best practice for parties to send each other litigation hold notices setting out what information should be preserved in light of any contemplated litigation.
  10. 10. STREAMLINING DOCUMENT REVIEW & PRODUCTION: PITFALLS AND BEST PRACTICES 10 Collection/Processing  IT Group can and should participate in collection process  Area where costs can be saved – most organizations can do this in-house with proper methods and documentation  Costing is largely volume driven - hence importance of upfront planning to reduce the amount of data collected  Benefits of current legal technology  Be aware of data security issues as your data leaves your organization
  11. 11. STREAMLINING DOCUMENT REVIEW & PRODUCTION: PITFALLS AND BEST PRACTICES 11 In-house Technology and Vendor Relations  Good thing for clients to manage part of the process in-house  Be wary though of purchasing technology for discovery or aligning with vendors  Technology rapidly changes – you might NOT be getting state of the art products  Cheaper vendors are cheap for a reason  Flexibility in vendors or technology is a good thing
  12. 12. STREAMLINING DOCUMENT REVIEW & PRODUCTION: PITFALLS AND BEST PRACTICES 12 Legal Review  Absolutely the most expensive part of discovery  Incredibly rapid change in approach to legal review of data  Demand better - clients should no longer have to pay for a linear, document-by-document review  Benefits of data Analytics  Human vs. Machine review – use TAR!  Outside counsel must be literate in this technology
  13. 13. STREAMLINING DOCUMENT REVIEW & PRODUCTION: PITFALLS AND BEST PRACTICES 13 Production & Beyond  Parties should discuss beforehand how to co-operate on discovery and make production  Dealing with regulators and the asymmetry of production – demand proportionality  Clawback Agreements are key  Not all production is created equally – newer methods of producing documents are cheaper and make the data easier to use  Where is your data after all is said and done – how do you minimize hosting costs and what happens to your information when the matter is over
  14. 14. STREAMLINING DOCUMENT REVIEW & PRODUCTION: PITFALLS AND BEST PRACTICES 14  Make your data retention and usage procedures user dependent  Lock yourself into old or outdate technology  Assume you’ll save money in the longer term with a Master’s Service Arrangement with a cheap ediscovery vendor  Be afraid to use TAR  Fail to engage with the other side respecting discovery and production specifications even if the law does not require it  Understand where, how and for how long your company houses its data  Consider implementing data retention and usage procedures and policies if appropriate  Have a plan for the creation and dissemination of a legal hold and ensuring compliance  Build up your in-house capacity to save on costs  Ask for deals from your technology vendor - especially on data hosting  Ask your counsel whether they are planning on using Analytics in the document review and how.  Ask them to demonstrate to you how this can save costs  Explore cheaper ways to perform document review  Try to get regulatory authorities to agree to a more reasonable approach to production  Consider a native productions but be aware of the risks  Have your counsel negotiate a clawback agreement

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