The small law firm is often left out of the eDiscovery conversation. Faced with choosing an enterprise tool, sticking with legacy eDiscovery software that is no longer being developed, or the old standby, manual processes, it might seem that small firms are left little in the way of eDiscovery options.
But that isn’t the case. Recently, The Lawyerist interviewed Derek Miller, VP of Desktop Solutions at IPRO, on several of their podcasts, talking about just that: eDiscovery tools small law firms should keep in their toolboxes.
Why Do Small Firms Need to Care About eDiscovery?
Derek Miller: I have a firm that I work with here in Phoenix, a small firm, two attorneys and two paralegals. And they’ve decided to use technology from start to finish. From the first meeting with a client, they start a chronology on what they’re going to produce, and what they’re getting from opposing counsel. And they start with electronically created information and images, which means someone has to process it and work with it. So they use our desktop software to ingest that information, review, and produce it. They also manage their transcripts and synchronized video, and they build the entirety of their case through the use of this technology.
At every stage, they’re reviewing, producing, scanning, coding data, and putting it into a product that will allow them to then take all of that information and transition it through the litigation life cycle and then go into trial and present that information. Ironically, everyone has to prepare as if they’re going to trial; whether or not they end up there is dependent upon the case. And because they’re using technology at every stage, they’re already familiar with the facts all the way through, solidifying their strategy.
Lawyerist: They don’t have to wait until pre-trial, or even discovery, they’re ready to go from the beginning of the intake process. That sounds like a pretty powerful way to approach trial prep and litigation in general.
Derek Miller: I think so. And because they’ve adopted the software and are using it through the whole process, they don’t have to relearn it each time when they get to a certain stage. It’s just a natural part of the practice.
Lawyerist: How would a firm get started using technology like that?
Derek Miller: That’s a great question. First, go out and evaluate a couple of different products, decide what it is that you’re trying to do, and then how a particular software fits that goal.
Secondarily, I would invest heavily in the training. Once you become familiar with the software, then make that a part of your workflow.
Fact Management:
Lawyerist: What’s a tool that you think should be in every litigator’s toolbox?
Derek Miller: I think one of the tools that can be really helpful, and that’s a little bit underrated, is a Fact management tool.
Lawyerist: What is a fact management tool?
Derek Miller: It’s a tool that bridges the gap between the discovery/production phase of litigation and the trial phase. And with every case, you should be preparing as if you are going to trial, even if you don’t ultimately end up in the courtroom.
Lawyerist: I’m imagining that a fact management tool uses key facts, material facts, extraneous facts, as the central organizing principle, and my assumption is that it helps me organize what those facts are and identify why they might matter, helping me draw connections between them.
Derek Miller: Yeah, I think one way to think about a fact management tool is it’s like one of those photographic mosaics, where you’re trying to take a bunch of those little individual pictures and turn it into one big picture. And with litigation, you start with one big picture in mind, and then with all the little pictures you’re given, you try and paint it so it’s accurate and clearly seen. Sometimes that’s harder to do, because you’re stuck with all these little pieces of evidence, and you have to align those with all of the facts and issues of the case. A fact management tool can help you do that. You have to have the ability to manage witnesses, documents, testimony, and a chronology, and the ability to visualize “what happened when” is a key part of painting that picture.
Lawyerist: You just mentioned a chronology, what are some other key features you want to look for in a fact management tool.
Derek Miller: Something that ties together facts and the evidence that goes with it, whether that is a document, an email, a video, a transcript testimony from a deposition, any of those are all key pieces you want to manage. Additionally, you don’t want a tool that’s a bridge to nowhere. And what I mean by that, is that it would be great if all the effort and work product was going to transition easily into whatever you’re going to use for trial.
Lawyerist: Because the idea here, is that whenever I see a fact, it’s providing me with the additional context. So I know what that fact means, what the significance is, if it turns out to exist or not exist, if the fact is disproved or proved, and what that means for my case, and what are the documents I’m going to need to prove it up or disprove it.
Derek Miller: You’re right, and then which witness is going to testify and who’s going to introduce that evidence to help you out.
Lawyerist: Is this something that will work with my presentation software, or is this just something I would use myself on my laptop at my desk?
Derek Miller: It could be either/or. As I mentioned earlier, it could be something that’s going to transition that work product right into the trial software, so that if you do end up in the courtroom, you’re not redoing that work. It’s all going along for the ride.
Lawyerist: And that’s the philosophy behind IPRO, right? It’s something you begin using at the beginning of the case that helps you along the way, and then it also turns into a fact management tool as you need it to be, and it also helps you present your case at trial, and handles the whole lifecycle of the case.
Derek Miller: Exactly. We’re all about simplifying that entire process, from the start of discovery all the way through trial.
Redaction Woes:
Lawyerist: You were telling me about some PDF redaction disasters you were seeing recently that show what happens when you use software correctly, but for a purpose which it was not intended. Tell us what you’ve seen.
Derek Miller: Recently in the news, there was the story of the redacted information that was erroneously or accidentally exposed because of the tools that were used to do the redaction. It’s probably not the first or last time that will happen, but in this instance, it was an issue of understanding how the technology works versus the software itself, and that can be the bigger problem when it comes to selecting tools for the toolbox.
Lawyerist: So in this case, remind me, what was the situation and what was the tool that went wrong?
Derek Miller: Basically, the situation was they went through and they redacted some grand jury information, and the software did work as it was intended, and it did redact, but that doesn’t mean it was permanent or fixed, so an outside party was able to highlight, copy, and paste, and then show that redacted information in another document.
Lawyerist: This was the kind of situation where, someone drew black boxes over the document, which works if you’re going to print it, but doesn’t actually redact the digital information from the file.
Derek Miller: Correct. When you have an image or text, you can put a black box over it all you want, but the underlying data is still there. So while they did choose a redaction tool, they didn’t double check to make sure the information wasn’t still available.
Lawyerist: So how can lawyers make sure that when they are redacting PDF documents or other digital documents, they’re doing it correctly.
Derek Miller: That’s kind of the challenge: picking the right tool for the right job. Based on this recent experience, anyone doing redactions and producing redacted documents is going to understand how those tools work and be a little more careful so they avoid this type of mistake. But mainly you want to make sure you have the right tool in your toolbox. So use software that’s specifically designed to redact and produce those redactions accurately. And as far as the functionality of the software, you want to make sure it does a couple of things like automatically re-OCR the document to remove the text under the redaction, run validations to make sure the redactions are burned in and the text is correct, and then be able to create layered redactions so that multiple production sets can be sent to multiple parties.
In addition to those functions, in the IPRO for enterprise and IPRO for desktop products, there is a feature called Production Shield which identifies those types of documents that need that added layer of review before they’re produced.
Lawyerist: Which can keep you from making mistakes. Kind of like the email feature that reminds you when you’ve forgotten to attach something.
Derek Miller: Exactly. In a similar way that your email will ask, “Are you sure you want to send?” or “Did you mean to attach documents?” Production Shield works in a similar way where it says, hey, you may want to check these documents to make sure the redaction is correct and there’s no underlying text that could inadvertently get disclosed.
Lawyerist: That sounds pretty handy! Thanks so much for being with us today, Derek.
Derek Miller: Thank you.
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