Litigation Preparedness in a Nutshell (27/10/2015)

BASIC CONFLICT

Clients demand low cost, low risk and low effort e-discovery.
The law (and outside counsel) demands admissibility and defensibility.ADMISSIBILITY

To defend challenges to admissibility we need to prove the integrity of the information system (Evidence Act). This supports our claim of authenticity (the evidence is what it purports to be) and best evidence.

Proof of anything requires documentation. The only way to prove authenticity of an individual record is with metadata. This requires appropriate (and secure) methods and tools for preservation and handling of potentially relevant data.

The integrity of the information system itself can be proven with evidence of compliance with a standard such as ISO 15489 (Records Management) or CGSB 72.34 (Admissibility of Electronic Records).

Good RIM practices are the foundation of the EDRM.

DEFENSIBILITY

To defend challenges to defensibility we need to prove that our collection is complete (subject to objective claim of proportionality). This means our methods and tools for searching, collecting and reviewing must comply with the rules, developing case law and available and emerging technologies. Best practice is Standard Operating Procedure (litigation response plan) not Seat of the Pants.

Self-collection is frowned upon. Use of modern tools including machine learning is encouraged. Defensibility also requires co-operation and documentation.

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