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A recent paper published by Information-Management.com found that companies who assume that an e-mail archiving solution will solve their e-Discovery requirements may be sorely mistaken, for two important reasons – e-mail archiving systems generally do not incorporate the advanced analytical features necessary to quickly and efficiently sift through the emails and identify what’s needed, and e-mail archives do not store all of the enterprise content that may be required for e-Discovery.
To be sure, an e-mail archive is an important addition to an organization’s content management arsenal, but it should be considered as just one component of a comprehensive records management system. While e-mail is likely the source for the majority of the information asked for in most legal discovery request, correspondence on social media and other Web 2.0 technology is equally important. Currently overlooked in a number of cases, the explosive growth of social media in the business arena will eventually make this an equally important evidentiary source. The paper also pointed out that some organizations rely too heavily on technology when carrying out the discovery processes, forgetting that discovery in today’s modern, digital-based enterprise requires the right balance of people, processes and technology. All too often, technology is implemented without considering the resources that must also be devoted to the processes. This can lead to undocumented workflow procedures that do not pass the defensibility litmus test. It is critical that organizations clearly define records management and e-mail usage policies for all employees – especially those who produce substantial email. Wortzman Nickle has led the way in drafting workable records management policies for Canadian organizations. Tuesday morning, Lexis Nexis sponsored a panel discussion on proportionality, discovery plans, and the effects that the new Ontario rules are having on the way litigation is being carried out. The panel consisted of Master Calum Macleod, Kelly Freidman of Ogilvy Renault, and our very own Susan Nickle.
Proportionality was described as one component of a set of rules designed to encourage a cultural change in the legal community. It is no longer acceptable to proceed unilaterally – parties must come together sooner and communicate more often, in order establish a real dialog and focus on the issues at the beginning of the matter, not at the end. The new rules, and particularly the requirement for a discovery plan, are leading lawyers to develop a better understanding of technology. To be sure, most lawyers will not become techno-geeks, but it is important for lawyers to understand how electronic information is stored and where it likely resides. It is equally important for lawyers to appreciate that discovery has not changed just because documents are stored electronically – in the end, the case will hinge on same handful of documents. The only difference is that those documents will fit on a CD rather than in a banker’s box. There were many questions from the approximately 90 people in attendance, including dialogue about the concept of proportionality forcing litigants to think of alternative forms of proof, as some traditional forms of proof may be too cost-prohibitive. The seminar clearly illustrated that the new rules are having an influence, and will continue to shape litigation into a more manageable, cost effective tool to resolve disputes. Organizations that think nothing of investing significant sums in systems and processes to manage their financial assets, physical assets and human assets rarely even consider implementing a strategy for managing information assets. Unfortunately, the volume of information that is being created and maintained by organizations nowadays is rapidly approaching a critical mass where just “winging it” will no longer suffice.
OK, maybe they’ll automate a specific process, like email archiving. But in terms of getting the corporate consciousness around the legendary “80% of the information in our organization that is unstructured,” they’ll get to that sometime, someday, somehow. The strategic necessity to manage information effectively is rapidly approaching, with devastating consequences for those who assume they can wait. In the absence of a uniform information management strategy, most organizations arrive at what passes for a strategy simply by building on their current processes using the technologies and tools already in place. These tools are often the result of decisions made years ago, usually by individual departments. Although the prospect of simply ripping out this accumulated infrastructure is generally not an option, there are some hard questions that organizations should ask in terms of integrating and leveraging what they have and driving future decisions against a uniform, comprehensive strategy. The good news is that there are a lot of content and records management options out there. The bad news is that there are a lot of content and records management options out there. Wortzman Nickle, the leaders in e-Discovery and records management, can assist in determining which solutions would best fit an organization’s specific information culture, so that content is treated with the same respect as the organization’s money, inventory, and people. |
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February 2021
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