Most of what I know about cloud computing I learned out of
Documents matter to me as a litigator. A lot. If information is
recorded somewhere and is relevant to the issues in the case, I
have to get my hands on it. Some documents will become evidence at
trial. Long before trial, a key part of my job as a litigator is to
efficiently and cost-effectively help the client meet its key
e-discovery obligations – preserve and produce relevant
In the Mid-1990s, A Document Was Just a Piece of Paper
You see, 18 years ago, when I started practising litigation, I
would ask the client for the documents related to the case and a
box (or several) would arrive on my desk. What followed was the
analysis phases. I would pour through the stacks of paper. I would
decide who were the key players, analyze the issues, consider the
relevant legal principles and potential sources of evidence, and
decide on the legal research and fact-finding that needed to be
done to prepare the case.
Several years and many paper cuts later, the nature of documents
had evolved. Boxes of documents had to be supplemented with
computer disks, hard drives, and even back-up tapes.
Today, the documents are anywhere and everywhere – data in
the form of emails, GPS information, voice messages and business
and personal records of every sort are stored on laptops at
employees’ homes, on smart phones, on game consoles, and very
often, on servers in remote locations owned by third party cloud
Perfect Information Management Means Quick Document
In an ideal world, I would find each client’s information
management system completely litigation-ready. The information
management system would be sophisticated and structured and
implemented bearing in mind business needs, regulatory and legal
risks, records management best practices, privacy and security
concerns as well as IT needs and cost. I could then simply query
the system, and out would pop the relevant documents.
With Imperfect Information Management, Identification Is
Well-Served with a Data Roadmap
As you well know, the world we live in is not ideal. A second
best solution to the perfect information management system would be
to have a roadmap consisting of a “data map”, to tell
me what hardware and software is used, the policies in place (for
retention/destruction of documents, email use, social media use,
data of departing employees. etc.) and any and all cloud or third
party IT service provider contracts. Rarely, however, is a client
at this level of litigation readiness, to have thought through and
compiled all of the reference materials that will be needed to help
identify the documents relevant to the litigation.
Compensating for Lack of Litigation Readiness
Compensating for lack of litigation readiness is the mainstay of
my litigation practice. I identify the team, which might include
personnel from legal, business, IT, records management (if they
exist), privacy and security (if they exist). By conducting
interviews of these people and others, I get a handle on what and
how information travels in the organization. Having learned of the
types of documents created and used in the organization and how and
where they stored, I identify the information which is potentially
relevant to the case. I then put in place a “legal
hold”, which means that I implement procedures (by talking
and issuing memos to IT, the relevant “custodians” who
have information, and any third parties who have possession of the
client’s documents) to ensure that the relevant information
does not get altered or deleted pending the resolution of the case.
I then instruct the collection of the documents so that I can have
them processed, to weed out duplicates and irrelevant information
and get the documents in a form that they can be efficiently
I can then finalize analyze the documents.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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