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Length: 14.12 minutes. Type of file: Windows Media Video
The world was a very different place in 1849 when Henry David Thoreau exclaimed – admittedly in a broader context – that "[the] process of discovery is very simple."
Today discovery is anything but – especially with a digital revolution on our hands. And with legal obligations around "e-discovery" getting increasingly rigorous – in North America at least – enterprises better be getting their act (and their documents) together before it's too late, cautioned Ron Walker, a litigator with law firm Fasken Martineau DuMoulin LLP in Toronto. Walker was addressing the CIO Executive Council, a professional organization for Canadian CIOs in Toronto last week. (E-discovery refers to the process of seeking, locating and securing electronic data with the intent of using it as evidence in civil or criminal court proceedings).
In a talk peppered with examples and anecdotes culled from more than 25 years of litigation practice, Walker reiterated the vital importance of responsible e-discovery.
The seasoned litigator had a word of caution for his audience: Don't wait until you are embroiled in a civil suit before taking a hard look at your data retention policies. "Even when you reasonably anticipate a law suit, you have a duty to locate relevant material, preserve it and – if the litigation does happen – to produce and disclose that material in an organized way."
Following the e-mail trail
With the avalanche of data confronting enterprises today that's easier said than done – and nobody's more aware of this than Walker. He cited the example of e-mail, of which "somewhere around 30 billion are sent daily, and around 2.5 trillion annually."
How do you plough through that electronic morass, separate the wheat from the chaff, and ferret out everything relevant to any future high stakes litigation you may be involved in?
Large U.S. corporations have come up with an answer to that conundrum: outsourcing.
According to Walker, last year in the U.S. large Fortune 500 companies paid outside service providers $1.3 billion to sift through gargantuan volumes of e-mail looking for anything that could potentially be used in the litigation process. "The estimate for next year, for the same task, is about $2 billion," he said. In Canada there aren't any reliable numbers on what big companies fork out in e-discovery costs.
Of course, there are aspects to this issue that go beyond financial considerations.
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