Most litigators (and clients) can confirm that costs of e-discovery and related services have skyrocketed in recent years. In earlier blog posts, we’ve explained why “insourcing” litigation support services, including e-discovery services, can help reduce those costs. Still, business litigation almost always requires collecting, managing, storing, and producing electronic data in response to requests from opposing parties. While a 2008 amendment to 28 U.S.C. section 1920 makes clear that, generally, ESI is considered a cost of “making copies” and generally recoverable by a prevailing party, which specific costs are recoverable if your client prevails? A couple recent decisions provide some guidance and food for thought. Read more…
Legal Tech Blog
PACER, the on-line service that gives public access to case and docket information for the federal court system, was temporarily shut down on Friday. An ABA Journal article posted yesterday, which can be read here, reported that the shutdown may have been the result of a cyber attack. That article reports that the FBI is evaluating the claim, while other sources suggest that the FBI has determined the outage was due to a technical glitch. While lawyers practicing in the federal system should be concerned about this, PACER is up and running again.
Jurors, trial judges, and arbitrators have grown to expect that lawyers will use technology in the courtroom to help present the evidence. As a result, lawyers must know how to manage the trial exhibits, demonstrative aids, and other visuals to be used at trial in an electronic environment.
With all of the new apps available for the iPad and other tablets, a lawyer can now do much more on his or her own. Complex cases like class actions, however, typically have a large number of trial exhibits, videotaped testimony, and fact patterns that involve hard-to-grasp issues that require more sophisticated demonstrative aids. In those cases, it can be invaluable to have an assistant who can rapidly find and display trial exhibits, visually connect a piece of testimony to a demonstrative exhibit, and pull up videotaped deposition testimony for impeachment.
Many capable, independent third parties offer their services to assist with trial presentation. An in-house paralegal experienced in current trial presentation software, however, provides several advantages over an outside consultant:
First, an in-house paralegal may be as familiar with the documents as the lawyer, if not more so. That familiarity makes the process of calling out or highlighting a specific part of a document very smooth. It also makes the process easier if the lawyer goes off-script during the course of his or her presentation. Jurors, judges, and arbitrators notice and appreciate that a lawyer and trial assistant work well together.
Second, an in-house paralegal has a more hands-on role pretrial than an outside consultant and therefore will be familiar with the witnesses, themes of the case, and what demonstrative aids are intended to emphasize. He or she will often be able to suggest a trial exhibit to use for cross-examination and may offer a layperson’s perspective on how the evidence is unfolding during trial.
Third, it is easier to practice opening statements and closing arguments when working with someone in-house. The lawyer will have the opportunity to practice different approaches before trial because in-house paralegals are in the office almost every day. And the paralegal’s feedback could lead to important changes to how and in what order visuals are used during opening statements and closing arguments.
It may seems like a huge undertaking to train a paralegal to use the necessary hardware and software, but a few simple steps can make it relatively painless.
Trial presentation software programs offer customized training solutions, including on-site training for lawyers and staff and thorough written materials. Then it’s just a matter of practice, practice, practice. Starting as early as possible with building the trial database and practicing with case evidence in the database will give the paralegal the opportunity to see what works, identify technical problems, make corrections and adjustments, or seek out more training in advance of trial.
Going through the practice sessions together multiple times will help the lawyer and paralegal learn the best ways to communicate with each other. A paralegal who knows the case may also be able to help the lawyer refine the message. Others who sit in on a practice session can provide additional feedback.
Courtroom logistics are a critical part of trial presentation. Coordinate with courtroom personnel in advance to make sure that equipment and additional furniture can be accommodated (there might not be room at counsel’s table for your paralegal). Visit the courtroom to get a feel for the layout, including where to access electrical outlets, set up a projector or monitors, and place demonstrative aids. You should also figure out where the attorney can best engage the jury while being able to communicate with the paralegal. The technology available in courtrooms varies greatly; you may need to make arrangements with opposing counsel to share some of the technology, such as monitors or projectors. If possible, set up and test all equipment the day before trial to prevent disasters from happening later on.
There is no replacement for experience, but the more the lawyer and paralegal practice together, the more confident both will be in each other’s abilities.
Given the potential for better performance, increased satisfaction from the fact-finder, more peace of mind for the trial lawyer, and lower costs for the client, using an in-house paralegal for trial presentation is an alternative that should be considered.
© 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Last week a group of attorneys and paralegals from our litigation department took advantage of an opportunity to hear some advice from e-discovery pioneer U.S. Magistrate Judge Peck on “TAR” (Technology Assisted Review or Predictive Coding) during a live webinar exploring when to employ such technology. Judge Peck himself became ensnared in an e-discovery sideshow for his February 2012 opinion in Da Silva Moore “that computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.” (That saga has finally come to an end.)
I jotted down a few good takeaways from Judge Peck:
- TAR should not be held to a higher standard than traditional methods. Keyword and linear, eyes on every page review are rife with their own challenges, and there can be no expectation of perfection.
- Cooperation and Transparency. Peck mentioned that all the judges for one state’s entire judiciary recently signed onto The Sedona Conference Cooperation Proclamation, and he suggested that in addition to disclosing relevant “seed” documents (documents that are used to teach a computer’s algorithms how to determine what’s relevant), parties might consider logging and disclosing the non-responsive ones, too (without disclosing privileged documents, of course).
- Peck recommended using analogies to educate a judge who might not be familiar with e-discovery and TAR. He likened predictive coding technology to the spam filters on our emails, something we all rely on and benefit from in our daily lives.
About half of webinar attendees had already used TAR. The webinar was organized by an ediscovery vendor that provides TAR features in the databases it hosts for clients, so that figure is probably skewed. But with the amount of electronic data growing at a rate that’s hard to imagine (and outpacing the amount of storage available to capture it) the percentage of litigators using TAR is bound to increase as well.
In a 2011 Order, the South Carolina Supreme Court required all lawyers admitted to practice in the state to update their contact information in the state’s Attorney Information System. The Order provides that all attorneys “admitted to the practice of law in South Carolina shall have a continuing duty to verify and update their information in the AIS, and must ensure that the AIS information is current and accurate at all times. At a minimum, the contact information must include a mailing address, an e-mail address and a telephone number. (Rule 410(e), SCACR.) After years of refusing to comply with orders, directives and rules requiring her to maintain an email address, Cynthia E. Collie (aka Cynthia Homes), a regular member of the South Carolina Bar, has had her license suspended for posing “a substantial threat of serious harm to the public and to the administration of justice.”
Rule 1.11 of The Oregon State Bar Rules of Procedure (Revised 11/1/2013) requires that:
(b) All attorneys must also designate an e-mail address for receipt of bar notices and correspondence except attorneys who are over the age of 65 and fully retired from the practice of law and attorneys for whom reasonable accommodation is required by applicable law. For purposes of this rule an attorney is “fully retired from the practice of law” if the attorney does not engage at any time in any activity that constitutes the practice of law including, without limitation, activities described in OSB bylaws 6.100 and 20.0.
(c) An attorney seeking an exemption from the e-mail address requirement for the reasons stated in paragraph (b) must submit a written request to the Executive Director, whose decision on the request will be final.
In October I wrote about the SEC’s approval of changes to the FINRA discovery guide ”the rules that govern discovery in FINRA cases” that are likely to change the way litigants relate to and manage e-discovery. Today, FINRA issued Regulatory Notice 13-40 announcing that those amendments will become effective on December 2, 2013 and apply to all customer cases filed on or after that date. The Notice can be read here.
The scenario seems simple enough: You receive a hard drive of data from your client that you need to bring into your e-discovery processing platform and/or review platform. All you need to do is plug that hard drive into a computer and start copying over the contents, right? Not so fast. Without the proper tools in place, you run the risk of modifying the data on the hard drive. An example of this would be an automatic scan from the antivirus software installed on the computer. Most antivirus programs are setup to automatically scan a hard drive that is plugged into the computer. This is good for security but can be problematic for data collection as these scans have the potential to modify the date accessed field. Read more…
This summer Stoll Berne successfully represented a client in a dispute against the client’s former brokerage firm. As with most customer disputes against brokerage firms, we litigated this case through the Financial Industry Regulatory Authority (FINRA) arbitration program, FINRA Dispute Resolution. During discovery, the brokerage firm, a major, worldwide company represented by its in-house legal department, took some challenging positions with respect to e-discovery. Read more…
In Securing Confidential Information on the iPad Part Two I recommended both Documents by Readdle and Goodreader for organizing your files securely on an iPad, as well as accessing documents without an internet connection. A very helpful reader recently informed me that they couldn’t open password protected Word files that they had moved to Documents on their iPad. They received an error, and wanted to know if I had any thoughts on the matter. While I tried a few things, I was not able to successfully open a password protected Word file either. Password protected PDF files worked without a hitch, but not Word files. Read more…
Judge Shira Scheindlin, Senior Judge for the Southern District of New York, has been long considered the leading jurist and a pioneer of e-discovery jurisprudence. She authored the Zubulake I-V opinions, which are mandatory reading for all litigators certainly in federal courts and, in my view, in state courts as well. So you know it won’t end well for a plaintiff accused of spoliation when Judge Scheindlin issues an opinion beginning with the following: “A decade ago, I issued a series of opinions regarding the scope of a litigant’s duty to preserve electronic documents and the consequences of a failure to preserve such documents falling within the scope of that duty… Such obligation should, at this point, be quite clear especially to the party planning to sue.” Read more…