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Wednesday, July 21, 2010
Now that the oil has stopped, enter — the lawyers
By Jill Gambon
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BP hones skills through MIT programs
Homeland Security Sec. Napolitano speaks with universities
With each development in the saga of the BP Deepwater Horizons saga — death on the drilling platform, oil spreading throughout the Gulf of Mexico, fisheries shutdowns and costly cleanup efforts — new doors opened for attorneys and complex legal cases, including class action suits. At least 125 federal suits since April have named BP as a defendant, in Louisiana alone.
As with previous complex cases involving possibly thousands of plaintiffs and multiple defendants, spill-related suits will generate mountains of evidence. What is different this time around is that electronic discovery has reshaped legal proceedings, providing parties in court disputes with voluminous amounts of digitally stored data that can make or break a case.
To tame the burgeoning amount of information and to rein in the costs associated with gathering, analyzing and storing it all, attorneys, the courts and technologists are working to come up with ways to make it easier and less expensive to deal with electronic data.
“It’s as though at some level, technology has created a monster,” said Brian Davis, co-chair of the litigation department at Choate Hall & Stewart LLP in Boston. “And the courts are trying to wrestle with that monster.”
Because of the sheer amount of electronic data, whether it is e-mail, documents stored on thumb drives, websites, information on copier hard drives or archived records of instant messages, attorneys need to be more selective when deciding what material they want to request during discovery, says Shelagh Michaud, an attorney with the firm CullenCollimore PLLC in Nashua, N.H. Even a civil case involving a small business can involve millions of discoverable documents. “We are used to going after everything. E-discovery forces us to be more choosy,” said Michaud. To narrow the scope, opposing attorneys can agree early in the discovery process on things like keyword search terms and date ranges to be used, she says.
“Discovery is often the most expensive and time-consuming part of litigation,” said Lawrence Kolodney, a principal at Fish & Richardson PC in Boston. While the costs of capturing, searching, storing and analyzing the data are high, there are significant advantages of having the information in digital format. For instance, with e-discovery, materials can be ported into a database and made available to people involved in the case via a web browser. That gives attorneys instant access to the information from their computers, rather than having to ask a clerk to spend hours sifting through boxes of files, Kolodney says. Stored electronically, the information can be easily searched and sorted.
New tools for data mining and analysis are emerging, allowing attorneys to use the material gathered through e-discovery in different ways to build their cases. “There are new ways to manipulate data that you never thought of before,” Davis said. “This requires a completely new skill set. If you view electronic discovery as a nightmare, you are going to miss out,” Davis added. Many larger law firms have developed in-house teams to support e-discovery efforts.
The market for e-discovery software is booming, with worldwide sales expected to grow 23 percent this year to $1.2 billion, according to Gartner Inc., the technology research firm based in Stamford, Conn. Hundreds of firms have jumped into the market to offer software, consulting and cloud-based e-discovery services.
E-discovery has also impacted the way attorneys present their cases to the jury. Instead of producing paper documents at trial, firms can bring their database into the courtroom on a laptop and display e-mail, contracts or other files on screens for the jury and judge to see. Specific passages or sections of a document can be enlarged or highlighted in real-time and documents can be juxtaposed for comparison, a technique particularly helpful during cross-examination. “You have the ability to dance the dance with the witness,” said James Berriman, CEO of Evidox Corp., a Boston-based provider of e-discovery services. “Most business disputes are as dry as dust, with the two sides fighting over subtle nuances,” said Berriman, who was senior counsel and director of litigation technology at Goodwin Procter LLP before founding Evidox in 2006. But having the data in electronic format and being able to manipulate it on the fly is more engaging for jurors, he says.
The courts are taking steps to get e-discovery under control. Earlier this year, the Business Litigation Session of the Massachusetts Superior Court launched a discovery pilot project to address the growing burden and rising costs associated with e-discovery. Under the pilot, the court is working with the parties involved in litigation to bring the scope of discovery allowed in a case in line with the magnitude of the claims. To date, 19 cases, which include a class-action suit, trade secrets litigation and other business disputes, are participating in the project, according to Superior Court Judge Margaret Hinkle, the administrative justice of the Business Litigation Session. Hinkle said the civil court system was being “paralyzed” by e-discovery because of the massive resources and time required to handle it.
So far with the pilot project, Hinkle has seen a higher degree of cooperation and less contentiousness between opposing attorneys as they try to hammer out discovery issues early in the proceedings. The pilot is scheduled to wrap up at year’s end, but Hinkle hopes it will be extended and that participation will grow. “This is the direction where we have to go,” she said. “We just can’t sustain the cost of discovery. Too many resources are devoted to it.”
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