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A Wortzmans tradition at this time of the year (apart from holiday parties) is to look back on the developments in e-discovery and information management over the past twelve months, and bring out our digital crystal ball to try and forecast what will be the hot button topics next year.
Certainly, cybersecurity was at the top of the information management list in 2014. The year started out with Target trying to recover from their Thanksgiving, 2013 breach. Then Home Depot was hit, followed closely by Kmart and several other large corporations. The recent Sony hack and its associated lawsuits (including one by former employees who are upset their personal information was not adequately protected) has garnered worldwide attention. While cybersecurity is an important aspect of information management, the more mundane components of classifying and disposing of records are the real keys to tackling the IM leviathan. On the e-discovery front, technology assisted review has become mainstream in Canada, with many Bay Street law firms jumping on the bandwagon. Although the understanding and execution of the technology is still being ironed out, terms like statistical sampling, predictive coding and data analysis are now commonly bantered about in litigation support departments. The amendments to the Ontario Rules of Civil Procedure are now 4 years old, and we are finally seeing discovery plans become a routine part of the litigation process. Some plans are well written, while others that we’ve seen don’t quite make the mark, but the trend is moving in the right direction and we are seeing more efficient discovery as a result of these plans. So what does our e-crystal ball say for 2015? Here are our annual predictions for the coming year:
As we say goodbye to 2014, we would like to wish all our readers a wonderful holiday season. The EDRM organization recently published a significantly updated version of their guide, Statistical Sampling Applied to Electronic Discovery. Many of the definitions and concepts have been revised so that they can be understood by a much broader audience.
The guide is divided into two main sections – an overview applicable to those who need to have a high level understanding of the sampling process, and an in-depth section for those who have tape on their glasses and know how to use a slide rule (or otherwise aspire to be a geek). Although the title implies that the guide deals with statistical sampling (which is does), it also discusses judgmental, or intuitive sampling that legal professionals have used for years. It provides examples and examines the pros and cons of using each approach. It reviews both proportional sampling (for when you want to find the percentage of relevant records within a population) and acceptance sampling (for when you want to confirm that no records within a population are relevant). While proportional sampling can be used to confirm the lack of relevant records, acceptance sampling requires significantly less records be sampled. Sampling forms the cornerstone of every form of technology assisted review. It is an efficient method to validate document review results. This guide will hopefully dispel the myth that sampling is too difficult to consider, and encourage more practitioners to adopt advanced e-discovery processes. In its decision this morning in R. v. Fearon, 2014 SCC 77, the Supreme Court of Canada found that police do not need a search warrant to search the contents of a cell phone or similar device found on a suspect during a lawful arrest provided a four-part test is met.
Because the search of a cell phone has the potential to be a “much more significant invasion of privacy” than the typical search incident to arrest, the Court found that modifications had to be made to the existing common law power of search incident to arrest in order to comply with s. 8 of the Charter. The Court sought to strike a balance that gives due weight to the “important law enforcement objectives served by searches incident to arrest” and to the significant privacy interests at stake in cell phone searches. The Court set out a four-part test to determine whether such searches are Charter compliant:
The SCC’s approach is very different from that taken by the US Supreme Court on the same issue earlier this year inRiley v. California, No. 13-132, [see our blog: http://www.wortzmans.com/2014/07/04/us-supreme-court-clarifies-law-on-warrantless-cell-phone-searches-will-our-supreme-court/#sthash.Qtexavjx.dpuf]. In Riley, the US Court found that “privacy interests at stake in connection with search of an individual’s cell phone outweigh any legitimate governmental interest in a warrantless search of an arrestee’s phone.” While the decision in Riley was included in supplemental submissions filed after the hearing, the SCC chose to chart a different path for Canada. How often this new power to search without a warrant will be utilized – and whether the test will be difficult or easy to meet – remains to be seen. |
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