Susan Wortzman was quoted in the July/August issue of Lexpert about the advances in collaboration in the legal profession. The article, titled “When true collaboration will be embraced by the legal profession”, notes that communication is “critical” to teamwork. Wortzman said “As long as everyone knows what their roles are, they won’t be tripping all over each other and duplicating efforts”. To read the whole article, please click here.
Up to a year ago, most corporate decision makers were concerned about moving their data to the cloud because of security concerns. However, following a year of record breaking cyber-breaches, both in count and amount of data compromised, those same decision makers are now flocking to the cloud in ever increasing numbers, according to a recently released study by ResearchNow. Law firms should follow their lead.
The 2015 Enterprise Cloud Storage Survey found that about 1/3 of the 300 organizations interviewed had experienced a data breach in 2014 as a result of employees sharing files using a public cloud-based file sharing service (FSS), such as Dropbox or Google Drive. They also found a direct link between FSS usage and BYOD – mobile devices, with very little storage space compared to computers, rely on FSS to store and access data. As a direct result of this finding, 83% of the companies said they have taken steps to implement specific, dedicated private cloud based file sharing solutions for their employees to use.
In addition, one third of those surveyed have moved most of their enterprise resources to the cloud, specifically because the cloud providers can deliver better data security than their own in-house resources could provide.
In an age when any data store is susceptible to intrusion (as shown by the recent compromise of records for over 4 million former and current U.S. federal employees), data security has become one of the C-Suite’s major discussion points. Cloud providers, whose primary focus is on storing and securing their client’s data, are often much better suited to protecting an organization’s information than the organization itself – including law firms, who are often under the misguided impression that the firm’s security is better than that of a cloud provider.
Without adequate evidence, you won’t get very far using the proportionality principle to resist requests for further production. Case in point: Cargill Meat Solutions Corp. v. Premium Beef Feeders, LLC (http://tinyurl.com/Cargill-Meat). In that case, the US District Court found that a party who resists a discovery request as “unduly burdensome” must show “‘not only undue burden or expense, but that the burden or expense is unreasonable in light of the benefits to be secured from the discovery.’” In other words, evidence of proportionality was needed.
The same principles apply in Canada. Without concrete evidence of how a production request is disproportionate, Canadian courts will also reject proportionality arguments. In the footnotes to Comment 2C of the Second Edition, the Sedona Canada Principles provide examples of cases where our courts have made similar findings. Comment 2C itself states that “[w]hen a producing party wishes to reduce the scope of its production obligations by relying on the proportionality principle, or when a requesting party seeks to compel the responding party to expand its document disclosure, that party must lead evidence.”
The bottom line is that whether you are in Canada or the US, without solid evidence, a proportionality argument will not win the day.