Tagged: litigation

Electronic Discovery

We paralegals are in the story business. Through our work on legal cases, we are introduced to the skeleton of an account and must try to reconstruct the truth using the discovery process.

Most of our working hours are spent filling in the blanks. What we find when we do our jobs, and how we find it, can change a case’s direction, focus and even outcome.

Electronic discovery has revolutionized the way paralegals work and has given us unparalleled access to information. So our new challenges are time management and resource management: We must locate the most relevant information without becoming bogged down in the sheer supply of material. When we have accomplished this, the information fills in the gaps and can bolster our clients’ cases.

Not very long ago, discovery was limited to the hard copy files our clients kept (or did not keep). Ten associates and paralegals locked in a conference room would review 50 boxes of paper for days on end, creating “hot” document binders and sorting documents by relevance and issue. Numerous days and billable hours were required to weed through the information and then organize the material for use in a variety of trial scenarios.

Before the electronic database defined a new age of discovery, we occasionally found hidden gems of evidence or new ideas to support the client’s strongest position. But the infrequent cry of “Eureka!” is downright routine today. Because we have more data and it’s better organized, it’s so much easier to find new ideas and approaches. If a new approach to a case comes up during a document review, we can more frequently “discover” supporting information electronically.

This ability to more effectively manage the case information through the use of databases is just one example of how technology improves the litigation process.

At my firm we have established a practice group that focuses on providing discovery counsel, document review and production and litigation support services. At every stage, this group uses technology to improve its processes: by using databases to provide litigation support, by leveraging technology to assist in substantive document reviews for responsiveness and by conducting narrowly focused “snapshot” reviews even before the litigation is filed.

A perfect example of how technology enables litigation professionals to provide services that may not have been possible in the past, all-paper world is the snapshot review. It is a limited review done in order to quickly locate key information for the client Ñ e.g., for internal investigations or for pre-litigation risk assessment. This type of review can save firms and clients time and expense by allowing us to quickly get to the heart of the matter. And it can often help to produce an amicable settlement.

Consider this scenario: A client calls his law firm for help with a case. Adamant about his position, he waves around what he considers to be a “smoking gun” document and says he wants to file a complaint as soon as possible. The law firm persuades the client to conduct a snapshot review for additional fact-finding before filing. The firm harvests e-mail and other electronic documents from a few key players at the client’s organization. Using special software, the firm culls out redundant materials, applies date ranges and runs keyword searches – greatly reducing the volume of material for review. The attorneys then review the remaining documents, using the software’s visual mapping and search capabilities to quickly home in on the most relevant documents. They locate not only the smoking gun document that the client first brought to their attention, but also a number of e-mails and documents that clearly show the client’s case is not as strong as originally believed.

The snapshot review process has changed the complexion of early negotiations. The client now has a more accurate view of the situation and may decide not to pursue the case after all. But had the snapshot review shown his position to be well supported, the client could have proceeded to file the complaint and aggressively approach the next phase of litigation, confident that the more extensive document review required by the discovery phase would not likely introduce unexpected plot twists.

Technology also plays an important role in the discovery phase, where an even larger collection of information must be reduced to the subset of responsive documents that will be given to the opposing side and loaded into litigation support databases. And once again the litigation support team will need to zero in on the most important pieces of information.

Paralegals who effectively use electronic discovery and take advantage of technological innovations can bring clarity to a case. And with that clearer picture, the client has more data points to consider trial strategy and settlement negotiations.