David Stewart, national leader of Deloitte’s analytic and forensic technology practice in Canada, says it’s hard to pinpoint the cost of e-discovery because so much depends on the amount of data involved, the litigation, how many custodians are involved, and how well defined the search terms are.

He says small searches could be as cheap as several thousand dollars while complex ones could run to six figures. But to provide an idea of the scope involved, he says if you printed off all the documents and e-mails from a laptop with a 40-gigabyte hard drive, the stack of paper could be as tall as the CN Tower.

Stewart says one of the biggest challenges in setting up e-discovery infrastructure in Canada is that there aren’t many experienced professionals to hire. “There’s not a lot of skilled labour here that have done hundreds of e-discovery jobs like they have in the U.S.,” he says.

Stewart says it’s particularly important for companies that are regularly involved in litigation, such as pharmaceutical, manufacturing, and financial-services firms, to ensure they follow best e-discovery practices.

“If you don’t have a strategy in place to deal with evidence in your systems, you can get caught where you’re ill prepared to respond to the requirements of the legal action,” he says. “You have to think about how you collect, preserve, and store information. A lot of firms are spending significant dollars on how they manage e-mail on a go-forward basis. There are technology costs and human-capital costs. You may have to rejig some of your processes and how you back up your information.”

It’s one thing to find and produce documents, such as e-mails, but it’s another to be able to prove that the version in question is the original and hasn’t been tampered with.

Robert Childress, president of Wave Software, an Orlando, Fla.-based e-discovery software firm, says it’s imperative to have a mechanism in place that preserves a file and can create a second set that a lawyer can review without worrying about spoiling it.

He likens the situation to a bloody glove found at a crime scene. “Most software today makes a copy of that glove or cuts it up in little pieces and puts it in little bags and sends it all over the world. What we do is we preserve the original glove, the original fingerprint, without making a separate copy. You’d hate to go to court and know you were looking at a red glove but it was a blue glove in question,” he says.

He says his company’s Trident product can tell you who looked at a particular e-mail file, who touched it, and how or whether it’s been perfectly preserved. “When you go to court, you’re confident nothing has been changed or altered or [has] tampered the data. If you cut your hand on the glove, it would be spoiled. We preserve that,” he says.

Childress says his firm expects to do about $5 million in new business this year, a drop in the bucket in an industry various surveys have pegged at a $6-billion sector that’s growing at 30 per cent annually.

Patrick Burke, assistant general counsel for California-based Guidance Software, says it’s both a legal and technological challenge for lawyers to search through the computers of their clients to find anything that might need to be produced to the other side.

The obligation to do so, however, kicks in well before one might see the inside of a courtroom. He says lawyers in the U.S. begin the process when they could “reasonably anticipate” litigation, and new legislation in Canada, due to come into effect shortly, will make the situation very similar on this side of the border.

Burke says Guidance’s products allow companies to search all the computers connected to their networks and look for particular files that have keywords or other search criteria in them — all from one central location
Burke says in-house lawyers need to establish an e-discovery process, including having legal and information-technology teams work together, for the collection and preservation of electronic data. That includes determining their capability to reach all the computers and servers in the company, search them, and collect data in a way that doesn’t change it.

“Together, they have to work out a process by which every time they have a need to collect, they follow a repeatable process, they do things in the same way every time, and they have a checklist. You want to be able to show when [the data] was actually created and collect it in a way that you can prove it wasn’t changed — a forensic collection,” he says.