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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
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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
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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
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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
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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.
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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.
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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.
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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
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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
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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
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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
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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