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Key Evidence That Makes the Case

by Justin Smith

When you're on the cusp of a major breakthrough, it’s a sensation unlike any other.

While most cases come together through the careful assembly of hundreds of pieces of evidence, a few can turn on one fortuitous discovery — the single sentence, email, or document that can change everything.

Finding these moments requires intense, all-encompassing work, undertaken by dozens of attorneys. In the world of the cloud, however, intuitive ediscovery platforms are encouraging a wider breadth of users across legal teams to take their turn sifting through discovery data, constructing their knowledge of the case in new, more effective ways, from associates all the way to corner-office partners. When the knowledge of partners meets responsive ediscovery software, finding the key evidence becomes a collaborative experience for the whole team, which leads to better outcomes.

The below examples highlight what happens when cloud-based, easy-to-use ediscovery software like Everlaw helps create the environment for a winning case.

Hagens Berman Tackles a Case That Captured Headlines

Before Theranos and Elizabeth Holmes became household names through Hulu’s The Dropout and a salacious public trial, there were attorneys like Hagens Berman partner Reed Kathrein trying to piece a case together.

“I became involved in the Theranos litigation because John Carreyrou had written these articles in The Wall Street Journal,” Kathrein said, referring to the journalist who broke the scandalous story behind Theranos's decade-long deceit. “And I thought, ‘Wow, there's a securities fraud case here.’ Because Theranos wasn't public, it was very hard to find an investor who I knew, or through my connections, might come forward.”

Blog - John Carreyrou and Reed Kathrein at Summit - Image
John Carreyrou and Reed Kathrein discuss the Theranos litigation at Everlaw Summit

Kathrein and Hagens Berman put together a complaint on behalf of several Theranos investors against Holmes and Theranos COO Sunny Balwani.

It wasn’t until Kathrein dug deeper through Everlaw that he found the key piece of evidence that would help break open the case, and eventually lead to a settlement nearly two years after the litigation began.

“One night, we had just gotten this production from Theranos and people were doing some coding on the documents, but not that much had been done,” Kathrein said. “I just started looking, trying to find things that involved Elizabeth Holmes emailing herself. Lo and behold, up came 40 documents that were just her notes to herself or notes that she was having with others who she was having a conversation with. This was a treasure trove.”

One of the emails particularly caught Kathrein’s attention due to a different fraud case he worked on involving a different high-net-worth individual.

“It just blew me away... It was very exciting to just say, ‘Ah, I got you.’”

Years before, Kathrein served as co-lead counsel in a suit against a hedge fund for neglecting its fiduciary duties in turning capital over to Bernie Madoff, who was sentenced to 150 years in federal prison for a variety of fraud charges in 2009.

“I found one particular note that said, ‘Really smart people caught Mado. Not you,’” Kathrein said. “When I saw Mado, it immediately jumped in my mind as, ‘Is she referring to Madoff?’ It just blew me away. As much as we've researched in trying to find other meanings for why she wrote Mado, we couldn't find one. It was very exciting to just say, ‘Ah, I got you.’”

Finding this document helped lead to the eventual settlement, and Kathrein credits Everlaw with surfacing the information most crucial to the case.

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“Because of Everlaw, I was able to find the hottest documents that existed in their production and use those in the depositions that we took, use them effectively, find them quickly, organize those documents quickly, and help bring this case to resolution,” Kathrein said.

For Benesch, A Fabricated Email Leads to a Breakthrough

As with Kathrein, the breakthrough in Benesch partner Andrew Jarzyna's case came from a single email.

Benesch’s client was hit with a $280 million counterclaim for damages in the midst of an ongoing suit. Brainstorming how to combat the claim, Jarzyna looked to Everlaw to help find a way in. He spent hundreds of hours on the platform comparing documents, looking into metadata, and getting to the bottom of the case.

“The thing that initially tipped me off was really tiny...”

As Jarzyna combed through the data handed over in discovery, he happened upon an email that caught his eye.

Every Benesch attorney is given admin permissions on Everlaw, allowing them to do as much or as little as they’d like, while also freeing them up to explore the platform for themselves.

This empowered Jarzyna to dive in and see what Everlaw was capable of.

“It's funny because the thing that initially tipped me off was really tiny,” Jarzyna said. “Depending on whether something was a reply, or a forward, or an initial email in Outlook, it may or may not have quotation marks around it. And with this particular email, that was inconsistent. The email that was being sent had apostrophes, but it shouldn't have if you compared it to how those were used in other emails.”

Andrew Jaryzna, Partner, Benesch
Andrew Jarzyna, Partner, Benesch

After taking it to an expert and having no luck, Jarzyna persisted in trying to prove the lack of authenticity with this email.

“It was convenient for the other side that this email really helped their case, which automatically made it suspicious in that sense,” he said “We also asked for the document in discovery, and once they were unable to produce the native copy of it, despite having forwards of it, I really started to think we were on to something.”

A second expert confirmed Jarzyna’s suspicion that the email had been forged, and once the judge agreed, the entire case was thrown out.

Had Jarzyna, a partner in the firm's complex litigation practice, not been deep in the evidence himself, who knows how the case may have turned out.

Freeths Stands Up for Post Office Victims

While hidden emails can lead to clear breakthroughs, sometimes the evidence can simply speak for itself.

The British government-owned Post Office Limited became embroiled in one of the largest scandals to hit the U.K. in modern memory after its Horizon point-of-sale computer system falsely reported theft and accounting errors for hundreds of employees.

More than 900 sub-postmasters were prosecuted between 1999-2015, many by the Post Office Limited itself. This led to prison time and financial ruin for many, convicted for crimes they didn’t commit.

Freeths managed the complex group action against Post Office Limited on behalf of many of these wrongly-accused employees.

James Hartley, partner and head of Dispute Resolutions at the firm, took a hands-on approach in the critical discovery process and found the Everlaw platform instrumental in navigating through extensive documentation and uncovering evidence crucial to the case. 

James Hartley, Partner & National Head of Dispute Resolution, Freeths
James Hartley, Partner & National Head of Dispute Resolution, Freeths

“Everlaw provided us with a strategic edge in winning the case,” Hartley said. “Its intuitive features and robust functionality enabled us to efficiently manage vast amounts of data and identify key evidence essential to our strategy.”

The case presented significant challenges, with the opposition's strategy aimed at inundating Freeths with discovery documents. However, Freeths was able to leverage Everlaw's visual document grouping capabilities to organize and review the disclosure tranches, which comprised hundreds of thousands of documents.

“The Everlaw platform was a secret weapon throughout this case...”

One of the standout features of Everlaw was its powerful search functionality, which allowed the Freeths team to sift through documents to pinpoint crucial information, including board minutes, reports, and technical documents.

Everlaw also facilitated the review of last-minute documents received from the opposition, ensuring that critical evidence, such as technical documents highlighting computer system defects, known as KELs and PEAKs, was promptly identified.

“The Everlaw platform was a secret weapon throughout this case," Hartley said. “Its ability to streamline collaboration and empower us to work seamlessly, even in a paperless trial environment, was unparalleled. Without Everlaw, navigating through the document dumps would have been overwhelming.”

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A new TV series in the U.K., Mr Bates vs The Post Office, brought this case to life, and debuted on PBS Masterpiece in the U.S. this month. The government public inquiry into the wrongdoings resumed this April.

Creating Breakthroughs with Everlaw

Each of these cases represents the promise of modern ediscovery, and what can be accomplished when ediscovery software serves the needs of the firm.

Whether it’s a single email buried amongst millions of documents or the defects of a computer system hiding in plain sight, having the right technology can prove essential in making a case.

Everlaw is committed to promoting justice while illuminating the truth, and creating legal technology that helps users get to the heart of their matters, faster. To learn more, or see it in action, sign up for a demo today.