CD: In your opinion, how important is e-discovery when it comes to resolving commercial disputes? What are some of the typical technical issues and challenges that parties may encounter during the process?

Ohlms: Ninety-seven percent of business-related documents are electronically stored information (ESI) such as emails, Excel files or Word documents. As a result, ESI is often the evidence that plays the key role in how a commercial dispute is resolved. One could argue that besides identifying credible legal theories for offensive claims or defensive purposes, nothing is more important than properly handling e-discovery. Failure to conduct e-discovery with an awareness of these issues and with the help of a qualified legal technology adviser can result in your offensive case being decided not on its merits but on your preservation and collection efforts or unnecessarily increase your costs of defence.

O’Brien: Numerous technical issues can arise during the course of e-discovery. First, once litigation starts, the client and its legal counsel must preserve and collect ESI in a defensible manner. This includes issuing a litigation hold and identifying all ESI sources that may contain responsive documents. For relevant witnesses, the client needs to suspend its auto-deletion routines on its electronic systems such as email. Backup tapes should be identified and preserved as necessary, especially if relevant data only exists on backup tapes. During collection, it is important to preserve metadata, so that ESI and corresponding metadata may be imported into a review tool used to identify responsive documents. This process is fraught with many pitfalls, including deduplication and the identification of hidden information, such as hidden columns in a spreadsheet or hidden histories of revisions made to files.

Apr-Jun 2016 issue

Freeborn & Peters LLP