Too Much Information, Part 1: e-Disclosure

Today I’m going to write about a RIM blog I have discovered thanks to the ARMA website links, “Too Much Information” by The 451 Group.  In particular, I want to discuss two articles from different authors, on quite different topics.  Given the word length limit on entries for the journal assignment, I’ll be splitting my writing up into two seperate entries.

The first article, by Nick Patience, is a review of the topics discussed at the 6th Annual e-Disclosure Forum in London, dealing primarily with UK law.  Patience identifies key themes that came up during the forum.  The first of these is “Practice Direction 31B”, which is an amendment to the rules of civil procedure in the disclosure of electronic documents.  Of the changes, Patience identifies the addition of a 23-question questionnaire to be used in cases that involve a large number of documents, and emphasizes how this would be useful both in getting parties organized for proceedings and as a pre-emptive method for organizations to prepare records in the event of future litigation.  In Canada we have some standard guidance in the form of the Sedona Canada Principles, the Sedona Working Group, and provincial task forces working on refining e-Disclosure practices.  I suspect there are discrepancies in practices between provinces, simply due to the nature of the Canadian legal system, which might make it difficult to apply a detailed questionnaire as common resource (conjecture on my part, since I’m certainly not an expert in law), but I certainly agree with Patience about the potential benefits of such a resource.  In reviewing the case law digests, it is clear that one of the great challenges of e-Disclosure is limiting the scope on what constitutes evidence, which is, I believe, at the court’s discretion.  Examples that I’ve found are:

Dulong v. Consumers Packaging Inc., [2000] O.J. No. 161 January 21, 2000 OSCJ Commercial List Master Ferron.. The court held that a broad request from a plaintiff that the corporate defendant search its entire computer systems for e-mail relating to matters in issue in the litigation was properly refused on the grounds that such an undertaking would, “having regard to the extent of the defendant’s business operations, be such a massive undertaking as to be oppressive”. (para 21).

Optimight Communications Inc. v. Innovance Inc., 2002 CanLII 41417 (ON C.A.), Parallel citations: (2002), 18 C.P.R. (4th) 362; (2002), 155 O.A.C. 202, 2002-02-19 Docket: C37211. Moldaver, Sharpe and Simmons JJ.A. The appellants appeal a Letter of Request issued in a California court seeking the assistance of Ontario courts in enforcing an order for production of 34 categories of documents by Innovance, Inc. Appellate Court limited the scope of production and discovery. Schedule A details the electronic sources and search terms.

Sourian v. Sporting Exchange Ltd., 2005 CanLII 4938 (ON S.C.) 2005-03-02 Docket: 04-CV-268681CM 3. Master Calum U.C. MacLeod. Production of information from an electronic database. An electronic database falls within the definition of “document” in our (Ontario) rules. The challenge in dealing with a database, however, is that a typical database would contain a great deal of information that is not relevant to the litigation.  Unless the entire database is to be produced electronically together with any necessary software to allow the other party to examine its contents, what is produced is not the database but a subset of the data organized in readable form.  This is accomplished by querying the database and asking the report writing software to generate a list of all data in certain fields having particular characteristics.  Unlike other documents, unless such a report is generated in the usual course of business, the new document, the requested report (whether on paper or on CD ROM) would have to be created or generated. Ordering a report to be custom written and then generated is somewhat different than ordering production of an existing document.  I have no doubt that the court may make such an order because it is the only way to extract the subset of relevant information from the database in useable form. On the other hand such an order is significantly more intrusive than ordinary document production. A party must produce relevant documents but it is not normally required to create documents.  Accordingly such an order is discretionary and the court should have regard for how onerous the request may when balanced against its supposed relevance and probative value. (Italics P.D.)

[These only represent the first three cases I found in the LexUM Canadian E-Discovery Case Law Digests (Common Law) online, under "Scope of production and discovery". http://lexum.org/e-discovery/digests-common.html#Scope]

What this news about UK policy makes me wonder, though, is precisely why we haven’t implemented a better national standard.  The Sedona Principles are wonderful for what they are—recommendations from a think tank drawing on the experience of lawyers, law-makers, technology and information professionals—but in order for it to really mean anything, it has to be enacted in policy.  Naturally, that kind of legislation doesn’t happen overnight.

Another theme Patience identifies is the growing trend of cloud computing, and the problems therein.  This sort comes back to my frequent rants about web records; the conference participants agreed that service level agreements (SLAs—precisely the kind of agreements I noted in my last entry) by cloud service providers did not provide sufficient guarantee as to the control and security of a user’s records (in this case, the user being an organization).  Patience describes this quality of the SLA as lacking the “necessary granularity”—you need to know that you can search for, find, and retrieve your data in a form that you can use.  As Patience says, not having that guarantee is a “dealbreaker”.  This seems like a very important counterpoint to the ever-growing buzz about cloud computing, and re-enforces the need for organizations to exercise caution before making a decision about how they want to manage their data.

 

Resources:

ARMA International

E-Discovery Canada

Patience, N.  (2010, November 16). e-Disclosure – cooperation, questionnaires and cloud. Too Much Information. Retrieved on November 26, 2010 from http://blogs.the451group.com/information_management/2010/11/16/e-disclosure-cooperation-questionnaires-and-cloud/

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