Nickle practices law with Wortzman Nickle Professional Corporation based in Toronto, Ontario. The firm focuses on providing legal advice regarding e-discovery, litigation readiness, records management policies, and litigation management to law firms and corporations.
We caught up with Susan shortly after she presented in a session on early case assessment and information governance strategies. Here is an excerpt of the conversation:
E-Discovery Beat: You and the rest of the speakers during the session seemed to agree that more often than not lawyers come to meet and confer ill-prepared to have any sort of meaningful discussion about e-discovery. In your experience what are the major causes of that lack of preparation?
Nickle: Sadly, I think one of the major problems is that lawyers don't understand technology well. A lot of us went to law school to avoid math and computer science and all those now important specialties. What we're seeing is that lawyers don't even know what sort of questions to ask and it puts them at a real disadvantage. We are not suggesting that lawyers have to become IT professionals, but they do have to know in individual cases when to bring in a good IT professional to advise them on how best to do preservation, collection, etc. So I would say the number one bar is a misunderstanding about technology.
Number two is just the shift in how we do litigation now. It used to be you pleaded your case, the other side responded, you’d wait a long time and no one ever really adhered to the rules of production. You were really dependent on your client to get information and it was generally in paper form. Now, because of electronic information, you have to get it quickly or you risk not being able to get it at all and you have to know where to find it. You can’t wait until months down the road because you have to get a handle on your case early. That’s a great challenge because it’s a big shift in thinking for lawyers. I can’t underscore enough how important that preparation is, to have a basic understanding of the client’s IT infrastructure so that you don’t agree to things that simply are not possible or are very expensive and to have a basic understanding of what the case it about.
E-Discovery Beat: What are some of the key elements that go into a successful information governance plan?
Nickle: No matter whether you are a ten person mom and pop organization or an enormous multinational company you have to keep it simple. You have to look at how your organization works today; you can’t all of a sudden think of some brand new way to do absolutely everything because your employees have to keep doing their jobs. The key is to develop a simple classification system and scheme; we call it big buckets. Generally speaking, you take each business unit and you look at the general types of documents that are generated and received and classify them broadly so it’s simple enough for people to utilize. The other key part is to bring all the stakeholders to the table at the beginning. Often, legal, IT and other departments, including records management, are all on the same page; they all have the same goals but they just don’t say it the same way. So if you can get them all in the same room and come up with an overall strategy it will often make things much easier and improve the chances that the organizations will, first of all, engage with the work, then adopt the plan and assess later it to see if it’s actually working. But the big mistakes are made when everyone is in a silo and they make the plan so complex and granular that there is no way anyone is going to use it.
E-Discovery Beat: How does technology factor into the information governance discussion since many information governance initiatives are to some degree dependent on certain tools.
Nickle: Unfortunately, what sometimes happens is IT buys something and it really doesn’t fit well with the goals of the other departments. After you’ve spent a lot of money you feel like you have to use the new technology and you have to try to make policies and processes that fit with that infrastructure. When you do the upfront work and plan, what you usually fine is that you can get more out of your existing investments. The planning is critical. A little bit of upfront work can save you endless time and aggravation. It’s just hard to get people's heads around it, particularly in a tough economy, because that planning and upfront work does cost some money.
For more information on this topic, watch Exterro's recent webcast "E-Discovery and Information Governance: Assessing Needs and Aligning Priorities" here.