Best Practices: Litigation Timelining
Gene Albert
Principal, Lexbe LC
Early Case Analysis, Witness Prep and Cross, Motion
Practice & More
eDiscovery Webinar Series
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Takes Place Monthly
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Cover a Variety of Relevant eDiscovery Topics
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Presentations Available for Download by Registrants
eDiscovery Webinar Series
Lexbe is an Austin, TX based eDiscovery software and services provider.
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Lexbe eDiscovery Platform
Lexbe eDiscovery Platform is a hosted eDiscovery processing and review
tool. Users can load a common file types, process for review, OCR for
search, and conduct document reviews, productions, prepare for depos
& analyze transcripts, conduct case analytics, prepare for dispositive
motions, and provide litigation support during trial.
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Lexbe eDiscovery Services
Lexbe performs large volume document culling, processing from native
to Native extracted, PDF or TIFF, load file creation, high-volume OCR of
image files, Rule 26 and eDiscovery consulting, and related eDiscovery
Services.
About Lexbe
Lexbe Sales [email protected] (800) 401-7809 x22If you have any questions or technical issues, please e-mail them to:
[email protected]
Questions will be forwarded to Gene and answered during the webinar or via
e-mail if we run out of time.
eDiscovery Webinar Series
○ Principal of Lexbe LC, a provider of cloud-based litigation processing, review and document management software & eDiscovery services.
○ Frequent speaker and author on eDiscovery and legal technology issues. ○ Prior business experience in software, medical services and internet-based
businesses. Prior legal experience as in-house counsel and in private practice.
○ eDiscovery consultant & expert testimony. ○ Education
MBA, University of Texas (2005)
JD, Southern Methodist University (1983) BA, University of Texas (1979)
○ Contact Gene Albert 512-686-3460 [email protected]
eDiscovery Webinar Series
Timelining Best Practices
Agenda
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Why Timelining is More Important than Ever
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Early Case Analysis - Timelines or Data Analysis
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Why Timelining is Often Haphazardly Done
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Good Timelining Software Should. . .
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Timelining Uses
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Examples
Timelining Best Practices
Data Types and Volume Keep Growing
Digital Information Created, Captured, Replicated Worldwide
4
3
2
1
2005 2010 2015
Source: IDC Digital Universe Study (2012) * 1 Zettabyte = 1 Trillion Gigabytes
Zettabytes*
2.8 zettabytes of information were created and replicated during 2012, a 56% increase from 2011 (IDC) Voip Email iPhones Peer-to-Peer Online Storage Digital Cameras Facebook | LinkedIn DropBox | Backup Devices Elastic Storage | SaaS | Google Streets Personal Blogs | Skype | World Satellite Images Personal Scanners | Customer Service Recordings Public Webcams | Google Goggles | Netbooks | Cloud Instance Servers | PaaS
Timelining Best Practices
Timelining - More Important than Ever
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More Documents and Evidence
+ Vastly more data is captured and available than ever before. + Email, text, document drafts, etc.,
+ Often provides a pretty complete record of contemporary thoughts and impressions.
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Attorneys Less Involved in Documents Early
+ Use of junior or outside reviewers. + Too many documents, too little time.
+ Productions can now be completed without attorneys looking at key documents in detail.
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Challenge of Finding the Key Documents
+ Still only a few really key documents, but harder to find now. ‘A pony in there somewhere’
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‘Learn Case as You Go’ Does Not Work Anymore
Timelining Best Practices
Timelining - Advantages Early in Case
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Find New Documents, Data Sources and Custodians
+ Key document and fact analysis lead to new document/data sources
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Coordinate Witnesses with Evidence
+ Avoid witnesses being discredited
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Tie Action Elements/Jury Instructions to Evidence
+ Do the facts in the documentary evidence support legal elements of the action?
+ Relate documented case facts to intended jury instructions
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Build a Coordinated Case Story
+ Legal case consistent with the documentary evidence + ‘Story facts’ consistent with the documentary evidence
Timelining Best Practices
Dangers of Bad/No Timelining
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Your Witness Testifies Inconsistent with Evidence
+ Witnesses do not remember all the digital evidence
+ Witnesses have selective and favorable memories of past actions + Digital evidence must be examined and organized make consistent + Failure to do so risks your witnesses being compromised
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Failure to Take Advantage of Opposing Witnesses
+ Opposing witnesses’ testimony and story should be tied down to avoid later fabrication and retelling
+ Attorney must have a good idea of the documentary evidence to be able to commit opposing witnesses’ testimony
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Lose Opportunity to Value Case Early
+ Problem of ‘leaking bad facts’ over time.
+ Need for accurate ‘Early Case Assessment’ to be able to properly value your case.
Timelining Best Practices
Timelining and Early Case Assessment
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Ambiguity in Term ‘Early Case Assessment’
+ Used two different ways
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Original Use - Assess case facts and witnesses
+ Key participant and document ID + Witness interviews
+ Timlining
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Recent usage
+ Quantitative analysis of incoming electronic stored information (ESI) + Statistical distribution of email and other case documents by time, custodian, etc.
Timelining Best Practices
Why is Timelining Often Haphazard?
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Attorneys Not Involved in Early Document Review
+ Attorneys not involved in early document collection and review
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Timeline Delegation
+ Timelining left to junior associates or paralegals
+ Delegation important and beneficial, but can lead to senior attorney ignorance of key facts
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Inadequate Tools
+ Often done in Word (WordPerfect) or on a legal pad + Limited searching and no dynamic updating
+ Limited or not document linking
Timelining Best Practices
Good Timelining Software Should Be. . .
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Easy to Use
+ Software-based & intuitive
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Shared & Accessible
+ Limited value if accessible/maintained by only one person
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Online & Secure
+ Allow access anytime and from home, on road, etc. + Fully encrypted and secure
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Linked to Files/Evidence
+ Close tie-in with original documents, notes and coding
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Allow Issue Coding, Filtering and Sorting
+ Organize and view by key participants, issue, date, materiality, etc.
Timelining Best Practices
Timelining Uses
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Witness Prep and Cross
+ Comprehensively prepare your witnesses
+ Be better prepared to cross and discredit opposition testimony
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Transcript Analysis
+ Structured fact extraction is more functional than depo summary + Relate key transcript facts to other location in depo or other depos + Relate also to supporting exhibits and other evidence
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Case Evaluation & Settlement Negotiations
+ Close tie-in with original documents, notes and coding
Timelining Best Practices
Timelining Uses (more)
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Client Meetings
+ Help clients during case progression to see how strong their case is. + Assists in maintaining a accurate ongoing case valuation.
+ Helps witnesses see how their testimony fits into the bigger picture.
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Motion Practice
+ Dispositive motions happens quickly finding key evidence is challenging.
+ Having key evidence previously identified,organized and linked to documents allows for quick effective response.
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Trial Support
+ Keep timelines updated during testimony allows for effective and fast cross and support.
+ Basis for Time-based trial graphics for juries and judges.
Timelining Best Practices
Timelining Best Practices
Examples: Issue Creation
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Issue Creation from
+ Cause of action elements + Anticipated jury instructions + ’Story’ facts
+ For claims, defenses
Timelining Best Practices
Timelining Best Practices
Examples: Open Documents from Timelines
○ Link in
Timeline opens document in Doc Viewer
Timelining Best Practices
Timelining Best Practices
Timelining Best Practices
Timelining Best Practices
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Timelining is More Important than Ever
+ Data is growing fast
+ Facts get lost in the sea of data
+ Attorneys are less involved in early review and production
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Good Legal Timelining Software is Available
+ Structure by issue, case participants, materiality, etc. + Linked to actual documents
+ Online, assessable by legal workgroups and secure (encrypted)
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Timelining can be Very Useful
+ Prepare and cross witnesses
+ Case valuation and settlement discussions + Client meetings
+ Prepare and respond to summary motions + Dynamic support during trial
Summary
Lexbe eDiscovery Platform
● Self-administration
● Native (Office, etc.) processing
● Automatic OCR
● Early case analysis
● Dual-index search ● Exact & near-dup ID
● Doc Review & issue tagging
● Blended productions
● Transcript management
● Timelining, depo prep
● Dispositive motions
● Trial document management
Cloud-based litigation document management software
