When managing documents during dispute resolution, it’s important to have a plan and be prepared.
“When you get to litigation, whether that’s in court or…adjudication, which is super important these days, all documents are going to be pulled in a process for discovery. This is where you can really pull your hair out if you aren’t prepared for it,” explained Krista Chaytor, partner with WeirFoulds LLP, in a recent webinar entitled Dealing with a Deluge of Documents, part of the Tools for Success series.
Crystal O’Donnell, CEO and senior counsel with Heuristica Discovery Counsel, explained e-discovery is how to get electronic information, how to deal with it, find the relevant information and produce it to the other side.
In the past when paper was used, there was less information and it was easier to deal with, she said. Due to the nature of electronic information, there are now stages. The first stage is identification.
“That simply is what kind of data do I have and where is it?” she explained.
Preservation is to ensure there is a system in place so that information can’t be deleted either intentionally or unintentionally. Collection is how to get the data from your systems into the systems that need to be used to review and analyze and then produce the documents.
Jeff Scorgie, WeirFoulds partner, said it is important to preserve documents and have some sort of protocol in place, not only for e-discovery purposes but for others as well.
“I see it’s certainly more common now in contracts for larger projects, larger construction contracts, where particularly owners are adding, contractors are adding to their subcontracts, actual contractual obligations to preserve key documents and records for sometimes very long periods of time after the project has concluded — two, five, even seven years also coupled with a very extensive audit right,” he said.
“You see this a lot in contracts that are being done on a cost-plus basis where the owner wants to have the ability after the project is done to go review project records dealing with the cost of the project.”
Planning and data mapping is one of the most critical areas when getting ready for a dispute, whether it’s adjudication, arbitration or litigation, O’Donnell said.
A number of construction contracts also outline how to deal with the discovery of electronic information should a dispute arise, she added.
“It’s important to collaborate, especially in construction projects where you have shared information and having discussions beforehand on what information is truly needed to be collected. What information can one party collect and not the other,” said O’Donnell.
“The data mapping is just sort of proactively knowing where is your relevant information and trying to encourage or discourage the use of people putting things on C drives, sharing information to their mobile devices and trying to keep all of your information in an easily accessible place, because if it is needed, it’s far more time effective if your lawyers don’t have to track (it) down.”
She discussed new technology that’s being developed including Chat GPT.
“We are still a bit of time away from actually implementing that technology and how we search for documents, but I have to say we’re not far,” O’Donnell said. “I would say within the next 12 to 18 months most of the tools that we are using for the exchange of documents are going to include some level of chat bot.
“We are moving lightspeed away from the times when you had to hire teams of people to go through these documents one at a time.”
One thing some parties are exploring is having each party’s documents processed in the same tool.
“It doesn’t mean that you’re each going to get to see each other’s documents, but one of the immediate benefits of being able to do that is you will automatically know what documents the other side already has,” O’Donnell said.
“That does two things. One, your lawyers aren’t going to need to necessarily review those documents for privilege, the other side already has them. And two, you don’t have to produce them, the other side already has them. It can be an incredible cost savings.”
In terms of looking forward, analytics and machine learning will be part of the puzzle.
“How we did e-discovery two years ago is absolutely not how we’re going to be doing e-discovery a year from now,” O’Donnell stated.
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