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When advising clients on their document collection, one of our key goals is to reduce the volume of records before the manual part of the review begins. The rationale is to reduce the collection of irrelevant data, which in turn reduces the labour intensive and costly human review of those records. While filtering by custodian, date, document type and keywords are the typical starting points, there are many new and advanced filtering methods available to us today, which are useful for organizing and reducing large and complex document collections.
Take, for instance, probability tracking. Probability tracking places a value on words based on relationships, proximities and frequency, in order to map out or create relationships with unknown data. Once the relationships between the words are identified, irrelevant data is more readily identified and culled from the collection. Clustering tools analyze the content of documents, comparing the number of times different words appear. These tools then place the documents into a specified number of clusters. Concept learning technologies are a step up in complexity from probability tracking. It identifies related words and analyzes their relationship in a document that may not share the same words but nevertheless can be identified as having similar topics. These techniques become even more powerful when combined with thesauri, taxonomies and ontologies. Complex tools such as these, based on mathematical probability and statistics, can be partnered with programs that present the information in a meaningful way for human examination and review. Collections of data represented in tables, trees, clusters and threads, allow us to understand the relationships of the records, thereby speeding up the review process. For more information on probability tracking and clustering tools, contact Wortzman Nickle. I recently had the pleasure of participating in the first international ESI Bytes program with Justice Colin Campbell, hosted by Karl Schieneman of JurInnov Inc. In “Lessons on e-Discovery in Canada”, we discussed how e-discovery is handled in Canada compared to the US, as there are clear procedural differences in our discovery process and our Rules of Civil Procedure. Justice Campbell and I agreed that many parties and their counsel in Canada are still ignoring ESI and printing email in “standard” cases. However, “non-standard” cases are more likely to address e-discovery issues. The panel agreed that while Canadian litigation practices are influenced by US litigation, Canada generally lags behind the US due largely to our cost regime (loser pays) and contingency fees (which are now becoming more prevalent). As Canada watched the US federal rule changes that occurred in 2006, we have been working towards developing our own e-discovery principles and guidelines, which have just recently made their way into many of the provincial rules.
When asked about spoliation cases in Canada, I was interested to hear Justice Campbell’s opinion that preservation of ESI was being practiced because of our discovery rules. I mentioned that in my practice, I have seen poor preservation practices, although some organizations and counsel are improving in this area. Cost sharing and cost shifting are also being considered more in Canadian cases. While Canadians may look at US jurisprudence for guidance in e-discovery, the US cannot assume that US attorneys know Canadian law. When it comes to assembling a team for cross-boarder litigation in Canada, the US would be wise to use Canadian lawyers experienced with e-discovery issues, and use Canadian vendors and specialists in the e-discovery field. Similarly, Quebec counsel should be part of the legal team to address the very different civil law which Quebec practices. To hear this interesting podcast, please click on the attached link: http://www.esibytes.com/?p=1276 |
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June 2019
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