As stated in the Foreward: “These guidelines have been prepared by the Canadian Judicial Council to assist courts. Judges retain discretion in making any cost orders in a particular matter. Use of these guidelines should assist both lawyers and judges in considering e-discovery as an affordable tool, particularly when pursued in proportion to the scope of the litigation.”

Noting the recent Practice Directions issued by BC and Alberta, as well as the CJC’s own National Standards, the paper argues for the value of benchmarks for the pricing of ediscovery services. Benchmarks, it argues,

1. … provide a guide for the Courts to assess costs in a matter where technology has been used to assist with the litigation
2. … ensure that Law Firms which choose to do this type of work in house are still able to get money back for their client if they win a matter; [and]
3. … provide a guideline to firms and end clients alike as to how the Court might rule on such costs and provide a predictive costing model.

The report provides line-item detail for services in all of the following categories:

1. Document Preparation
2. Database Creation
3. Numbering (Electronic Bates)
4. Scanning
5. Objective Coding
6. Processing Electronic Files
7. Database Management
8. Determination of Production Set (Legal Analysis)
9. Project Management
10. Examination for Discovery
11. Common Trial Book Preparation
12. Hearing Preparation
13. Hearing
14. Appeal Preparation

The paper does more than present sample costs (which are derived mostly from consultations with jurists and lawyers in B.C.); it also offers a method for developing benchmarks in other jurisdictions. For this broader, forward-looking initiative, it draws on definitions and approaches already in place in B.C., Ontario, N.S. and elsewhere. And the framework it presents allows interested parties to continue this important work on a local basis.

Anyone working in this area will have put together his or her own cost breakdowns and lists of vendor pricing. The CJC’s approach offers a way of standardizing these fragmented, apples-and-oranges efforts so that we can all begin to speak the same language. Not to get too excited (we are Canadian, after all), but this has the makings of an EDRM-style analytical framework for understanding ediscovery costs.

CJC’s Discussion Paper is an important contribution to the important work of developing meaningful, intelligible metrics that can guide how ediscovery costs are estimated, compared, calculaled and awarded.

We will be revisiting the thorny issue of pricing and pricing models — and what might be a better approach to RFPs and vendor proposals — in future posts.

The Declaration was written and adopted during the Vancouver Conference held in September. The purpose of the Declaration is to set up goals to be able to protect and allow a long term access to world digital assets.

The Declaration regroups many recommendations and asks political and economical institutions to collaborate for the safety of our digital archives.

At this time, we do hope that the declaration will have an impact and that the UNESCO will have the strength and power to promote and put in application the recommendations.

Now we have a Vice Chancellor of the Delaware Chancery Court going far beyond his colleagues and actually ordering the parties to adopt CAR and even to use the same vendor to host their data.

Many of us who have been active in the eDiscovery field for some time have been arguing for the adoption of advanced technologies and for greater cooperation between parties in the choice and deployment of particular technologies, but this order will likely take even the most ardent advocates by surprise.

There is already significant chatter about this ruling, much of it going so far as to suggest that Vice Chancellor Laster went beyond his proper role when he forced a particular approach to discovery on the litigants. Fair enough: Laster is essentially declaring here that no reasonable party can refuse both to adopt CAR and to agree to have its data hosted by the same vendor that is hosting the opposing side’s data. Still, it is more than likely that, once feathers have settled back into place, this ruling will be seen as part of a trend in which judges will move litigants – however reluctant they may be – in the direction of sensible, defensible, responsible and cost-effective means of streamlining the eDiscovery process. There is clearly a role for CAR technology in appropriate cases – particularly in early, first-pass binary responsiveness reviews involving vast amounts of data. There are also significant logistical and cost benefits to parties’ agreeing to share technical resources and developing standardized protocols for processing, search, analysis, review and production. Choosing an appropriate vendor to host all case data (with appropriate permissions, partitions and safeguards) is an avenue that many litigants will want to explore.

Clearly there is much here to debate. Watch for more discussion of this important ruling.

This case: EORHB, Inc., et al v. HOA Holdings, LLC, C.A. No. 7409-VCL (Del. Ch. Oct. 15, 2012)

Da Silva Moore v. MLS. (Case 1:11-cv-01279-ALC-AJP) (S.D.N.Y.)

Kleen Products, LLC, et al. v. Packaging Corp. of Amer., et al., Case: 1:10-cv-05711, Document #412 (ND, Ill., Sept. 28, 2012)

HT: Ralph Losey.

Domtar published a dozen of hilarious videos on an unclearly associated website http://www.paperbecause.com. One of our favorite, “Ration” will assuredly make you laugh!

Focusing on love and attachment to paper, Domtar does not mention the dangerousness of using paper like the paper cuts, the ink blots and other paper jams… Who’s going to reply to Domtar on those topics? Anyhow, we salute the ingeniousness and humor of Domtar’s campaign!

Recurrent themes included: the necessity of setting up an international legal framework for the preservation of digital documents, the development of costs structures, certified digital repositories, small and big scale digitization experiences, government open data and cloud computing. The papers of each conference should be on the conference website in a few weeks. We will keep you posted when they are.

Although sharing knowledge was a good reason to attend the conference, the main objective was to elaborate recommendations for the UNESCO. Thus, a draft of the declaration was presented during the concluding plenary. The attendees were able to make comments, remarks and other observations mostly on the importance of native documents, the establishment of a strong relationship with the industry and the democratization of access to documents and archives. The latest version of the declaration is now on the conference website [PDF] and it is possible to send comments until the 19th of October.

For more details, here are the backgrounder and the test results chart, supported by this infographic:

The day started with Ken Thibodeau who broke the ice with a conference about the problems related to the shape shifting character of digital documents and how it influences our practices. A dynamic Seamus Ross followed with a paper on economic models and lack thereof to stimulate and promote the preservation of our digital heritage.

The second part of the morning started with Luciana Duranti who talked about the trust that we can have or should put in place when it comes to digital diffusion of documents. She rapidly mentioned the WikiLeaks case as well as cloud computing and big data phenomenon. Anne Thurston [PDF] was the last but not least to speak on the first morning. Her conference was about the opportunities and cultural challenges that come with Digitization and Preservation. A few words on open data and open government experiment were said, but unfortunately along Thurston too few experiences of open data include open records.

After lunch, there was a heart breaking choice to make between the 7 concurrent sessions. These sessions had diversifying theme like the challenges related to digitized material, the preservation infrastructure, the intellectual property preservation, the digital repositories and digital forensics. During every session between 2 and 4 speakers shared briefly their experiences and research conclusions. Sometimes too briefly!

The first day of conference ended with the opening conference. A mouthwatering conference for the rest of the event, mostly thanks to Vinton Cerf, who is considered a Father of the Internet, who concluded is speech stating that the biggest challenges of all, are ahead of us!

Many topics are on the table, all related to preservation of our documentary heritage. More than 100 speakers [PDF] will present the labor of researches and experiments from all around the world.

For those of you who can’t be here, you can still watch some of the conferences online at this address: http://www.ustream.tv/channel/unesco-digitalage.

It’s not the first time that the UNESCO is interested in the protection of our digital heritage. The Memory of the World program reached is 20 years of existence this year and even a charter [PDF] was signed and published in 2003.

The 4-page statement was designed to complete a handbook on Outsourcing Technology Services [PDF] published in 2004 by the FFIEC. Although the handbook is more precise and voluminous and lists the steps to follow when considering this kind of service, the statement highlights risks that need to be managed and cared for before signing a contract with a cloud service provider.

Cloud computing seems to be on every tongue although it is not well known, it’s why the FFIEC starts its statement with a definition of cloud computing and presents 4 types of cloud: private cloud, community cloud, public cloud and hybrid cloud. Usually the community cloud is seen as a public cloud so it is more common to see a 3 types cloud model.

After a short introduction, the FFIEC underline a few important aspects which should be addressed to minimize the risk of cloud computing. The measures include the verification of the reputation of the provider, his level of conformity to laws and a thorough verification of contracts. A great emphasis is put upon data and information security.

The FFIEC specifies that controls need to be implemented by the service provider to make sure he is able to offer a proper level of data protection for every kind of data (sensible, personal, confidential…). Data integrity also needs to be guaranteed and a good business recovery plan in case of disaster has to be set up.

The financial institutions also have a great role in assuring the protection of data and the governance plan might be adjusted to include specificities related to cloud computing. It is also interesting to note that a data inventory and a data classification are listed as important to properly protect and keep information security as high as it should. Obviously, strong control of access and effective destruction methods are required to ensure that documents are accessed only by the persons who need to and that when data reach their end of life cycle and need to be destroyed they are not recoverable.

In summary, the short statement is interesting even though it stays at a high level. The FFIEC statement also pinpoints that good practices of information management are a key element in the protection of information. And while this document is published by the FFIEC it is not for the only purpose of financial institutions and can be used as a good starting point for anyone who is considering cloud computing.

Opposing a proposed settlement in an antitrust case, Bob Kohn found himself in a situation where he had to make a compelling case in five short pages – the type and margin sizes being defined in court rules.

Constraints stimulating creativity, he “thought of the idea of using pictures which, as we know, paint a thousand words”. This lawyer revisited conventions to improve the effectiveness of his message and access to justice.

With this non-standard brief, Kohn managed to reach two goals : 1. drawing (!) attention to his procedure and 2. making his legal argument known – and understandable – to the general public, who is generally not prone to read court documents.