By Jason Scott Alexander, PracticeLink
E-evidence is the “smoking gun” of employee misconduct, cover-ups, anti-company propaganda. Ten years ago, it was primarily email that forged the route for hidden agendas, personal biases and various forms of intellectual property to freely float unchecked out the door.
Today’s litigators are dealing with significant new factors, including a surge in corporate data volumes, which has led to skyrocketing litigation costs.
“Some clients will require guidance in order to understand all possible places where documents could be located," says Jennifer Dolman, a litigation partner with Osler, Hoskin & Harcourt in Toronto. From personal devices to social platforms, SaaS applications and cloud-based data storage and file sharing services, it’s important to understand how to preserve and collect available data.
“Further, who has possession, power and control of the data and how can it be preserved without alteration? Does the company have the right policies in place to enable it to access data off an employee’s smartphone? Does that employee understand that their device may be subject to discovery requests and forensic examinations?”
With respect to the preserving and collecting process, Dolman points to Osler’s new Discovery Management Group, headed by Sarah Millar, a litigation associate. The group consists of project managers and tech experts who specialise in eDiscovery.
Dolman says litigators who are not in a position to build in-house eDiscovery expertise could consider outsourcing this function.
“Whenever a lawyer thinks the collection process will be something the other side may attack or scrutinize closely, it is important that the process be performed flawlessly,” says Dolman. “The lawyer will want to be in a position to demonstrate that the integrity of the data has in all instances been maintained.”
“Ultimately, eDiscovery really is ... the process of making sure you have properly identified, preserved and collected the relevant documentation that matters,” says Dolman.
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