Wortzman Nickle at the Osgoode Short Course on Obtaining, Producing and Presenting Electronic Evidence

This year, Wortzman Nickle presented on three separate topics at the Osgoode course on Electronic Evidence, held in Toronto on January 24th and 25th.

Chuck Rothman and Karen Groulx of Pallett Valo LLP presented the “Admissibility of Electronic Evidence”. The unique properties of digital information compared to its paper counterpart were explored, and the speakers emphasized that admissibility needs to be considered from the start – a misunderstanding regarding the process that created the electronically stored information may ultimately render the information inadmissible.

Chuck and Karen also discussed social networks and cloud computing, and how they may impact electronic discovery. The growth of social networking in the corporate environment is becoming exponential – when was the last time you saw an ad that didn’t ask you to visit the company’s Facebook page? The use of cloud computing is also growing at a substantial rate, with some predictions suggesting that most electronically stored information will be stored “in the cloud” in ten years. Although these technologies will change how electronic discovery is conducted, the basic tenants will remain the same – electronic discovery is still discovery, with the same legal considerations. Only the techniques are different.

Susan Wortzman and Susan Nickle explored “Obtaining Relevant Electronic Evidence”, with a focus on how to defensibly obtain such information first from one’s own client, and then from opposing parties. One of the key issues raised by lawyers in the audience was how to properly cooperate with opposing counsel when he/she refuses to participate in the discovery plan/meet and confer process. While this lack of collaboration (regrettably) continues to be a problem, there are ways to protect your own client. In such circumstances, Susan Wortzman recommends drafting your own client’s discovery plan and sending it to the other side. By failing to respond, counsel may tacitly approve the plan.

​As conference season is now in full swing, you can expect to see reports from a number of pending conferences, including Legal Tech New York 2011, in the coming weeks.