At Everlaw, we believe that secure, fast, and collaborative document review software is essential to the practice of law. Whether you’re a litigator at a large law firm involved in multi-district cases across several firms, corporate counsel involved in internal investigations, or a solo litigator representing dozens of smaller cases, having the right technology in place is important for your success.
Guest posting on our blog today is Seth Leventhal, a Minnesota-based civil litigator with over 20 years of litigation experience, with his take on the effectiveness of cloud-based ediscovery solutions for solo and small firm lawyers.
According to American Bar Association statistics going back over thirty years, over 60% of U.S. lawyers in private practice are solo or small firms made up of 2-5 lawyers. That’s about 580,000 lawyers. Among these, practitioners can be categorized in different ways—criminal/civil, full-time/part-time, transactional/litigation, and so on. As one digs deeper into the data, it is increasingly difficult to find detailed information about subsets of these practitioners. But, as for the subset of solo/small-firm civil litigators (“small firm litigators”), we know with absolute certainty that they share at least one thing in common: ediscovery poses a significant challenge.
I’ve spent the past seven years in a solo/small firm practice. In my time practicing, I’ve found there are different tiers of case complexity and appropriate ediscovery/document management systems for each level.
Small firm litigators should consider these various ediscovery solutions and rough guidelines when evaluating your preparedness for the matters you’re working on.
Tier One: None
Many client matters will come to small firms with nothing more than the goal of having a letter drafted, a phone call made, or a discrete legal question answered—perhaps to offer solutions to a business problem of one kind or another. In preparing to write the letter or give the client legal advice, perhaps you collect a handful of relevant documents, some correspondence, some emails, voicemails, or text messages, and a small number of business records (e.g., relevant contracts, purchase orders, invoices, and the like).
In matters like these, which are commonplace, use of any form of dedicated ediscovery resource may seem unjustified. The volume of data is small. Storing and locating specific information is easy.
However, while it would undoubtedly be easy for you to get your arms around this information quickly, it might be more difficult if you have ten or more such matters at the same time. And it will be far more difficult when you have accumulated dozens of such matters over months and years of practice. These common-place matters frequently go dormant and then suddenly waken unpredictably later.
Thus, while a dedicated ediscovery resource may seem unwarranted for these “tier one” cases, electronic data preservation and management is critical in every single matter. Not solely for the preservation, organization, and easy access to the data itself, but also for preservation, organization, and easy access to the related legal work. This might be useful in the same matter in years to come or other similar unrelated matters. Furthermore, although you won’t know it ahead of time, some tier one cases will evolve into larger, more complicated and time-consuming cases.
For each tier one matter, you might have a manila folder of hard copies—hopefully scanned and organized—and perhaps a dozen emails. As discussed above, all of this data should be preserved electronically in every case. From some indeterminate subset of these small seeds, thorny bramble bushes will proliferate.
When that happens—the opposing party raises defenses or counterclaims, or the gravity of a particular matter changes—you’ll want to take data management to the next level.
Tier Two: Dropbox, Google Drive, or Other Cloud-Based Document Management Systems
If the volume of information in a single matter exceeds a relatively small amount of data – say a single “banker’s box” (2,000-2,500 pages) in paper form – if you can’t electronically search the data-set, you may find yourself in over your head. The issue is not one lawyer’s ability to have a thorough knowledge of this relatively small volume of data. As discussed above, the challenge is the fact that most small firm litigators have many such matters and cannot predict which matters will require attention any given day or week. Further, it’s important that you master the “universe of information” and that your colleagues or clients have access to the information in a manageable, useable form.
As a small firm litigator, you may use cloud-based, server-based, or PC-based electronic data storage systems. Each has its strengths and vulnerabilities, its adherents and critics. I’m partial to the cloud-based options because of the lower up-front cost, the sharing potential, and the data security advantages. You may feel otherwise, but I’d nonetheless suggest that you escalate almost 100% of tier one matters to tier two so that you can more easily and effectively manage your caseload.
Tier Three: Bates Numbers & Productions Logs or an Ediscovery Platform Litigation
A critical milestone in any civil dispute is the start of litigation. From a data management perspective, the key variations for small firms that come into play are: (1) document collection, retention, and production become adversarial battle-grounds, and (2) the involvement of the court system and the end-game of trial will require precision and certainty. You must know what data has been collected, where it was collected from, when you collected it, what you have produced, and what you have not yet produced.
Option A: Bates Numbers & Production Logs
The first step is to make sure that all documents produced for the other side in litigation be given a unique document identification code. This is a simple way for you to have a reasonable degree of certainty as to what data has been produced and what data has not.
In pre-digital days, bates numbers were physically stamped onto documents. Today, the most economical, though labor-intensive, ways to tackle bates-numbering that I am aware of are (1) farm out document copying to photocopy or scanning services that will mark files with bates numbers; or (2) convert all documents to PDF and use Adobe Acrobat or a similar program to apply bates numbers.
The similarly low-cost, high-effort way to deal with production logs is to keep a record of every production, noting the date and the bates range.
These options may be the complete solution for small litigation matters. It requires very little by way of investment. It will do the job for cases of short duration and relatively small datasets. On the other hand, making use of these solutions for any longer, more protracted and complicated cases is extremely risky, if not entirely impractical.
Option B: A Dedicated Ediscovery Platform
When you’re in a litigated matter that goes for months or years, you can’t expect to retain the full breadth of case data, or even the data production history, in your mind. In this case, you’ve reached Option B. You’ve also reached Option B any time your matters require that more than one person is familiar with the case.
I learned recently of a bitterly fought divorce litigation involving a multi-millionaire where one side brought a motion to compel the production of financial information. The other side argued that the information had already been produced. At the hearing on the motion to compel, the judge reasoned that one side was obviously right and the other side obviously wrong. When it was discovered who was wrong, the judge continued, sanctions would likely follow.
The previous tiers of document management will fall short under these circumstances. They will fail you, and any money saved by foregoing this technological tier will be lost. Not to mention that the risk to your practice could be great.
For me, this is where Everlaw comes in.
The striking superiority of Everlaw over any of the previous tiers of ediscovery solutions:
Data that goes into Everlaw does not go missing. With all the other solutions mentioned, you face a high risk of accidental loss or deletion;
Everlaw handles nearly all types of digital information;
Everlaw (and other platforms like it) provide for extensive preservation of attorney work product (coding notes on documents, chronology, etc.); and
Everlaw provides an absolutely dependable and defensible record of data going in and data going out.
Evaluating when a matter steps from each tier to the next is a matter of professional judgment and experience. Certainly, in some cases, a dispute might stay in tier one from the day the matter is opened at your office until the resolution of the dispute, whether through mediation, civil litigation, or arbitration. On the other hand, no longer can any U.S. civil litigator practice without the expectation of being at tier three in at least a few cases a year. For those cases, I recommend Everlaw. At a minimum, I recommend that solo and small firm civil litigators think through the tiers for all litigation matters and have a reliable plan in place.