Managing Complex Civil Litigation

Jerry Epstein Jonathan GriffithBrent Kidwell Associate General CounselJenner & Block LLP Fannie Mae

March 16, 2010

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Day 1

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How do you get from there to here . . .

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Strategy In An Age of Noise

How do we determine what we need to prove – the end game?How do we keep track of what we’ve found – and what we really still need?Best practices for managing the information, overall strategy, and staying on task

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What Do We Need to Prove?Very early jury instructions

Light or heavy

Initial fact investigation/interviewsFrom the moment you get the first call: memos to file, not handwritten notes that gather dust

Annotated Complaint/Answer/ CounterclaimFast forward to contention interrogatories – or summary judgment three years later

“I think Joe drafted that part – but he retired a couple of years ago and there are no records of the source.”

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Annotated ComplaintExamples

“Defendant knew by May 2008 the accelerators were sticking.”

FootnoteOct. 6, 2009 interview summary, Jane Doe, at p.3Sept. 2, 2007 internal email, Smith to Jones (summarizing telephone conference with Davis)

“Defendant denies the allegations of Paragraph 53 of the Complaint”

Fn: Smith was not at the meeting. See minutes dated xx.

HyperlinkedEarly set of key documentsLow costTechnically – can link to “hot” documents on SharePoint or in CaseLogistix

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The Master Plan: Early Outline of Proof

Build from jury instructions and pleadingsIdentify facts that support each element we need to prove – don’t be too document-centricWho has personal knowledge of those facts?

My witness, a third party, or the adversary?How strong is the witness? Alternatives?Available for trial?

Best documents for each point?Great document but no witness? Who can sponsor our best documents?

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Early Outline of Proof (cont.)Where will I need an expert, and what facts/materials will she need? (end game drives intelligent discovery plan)What do we need in discovery/investigation???? (end game drives intelligent discovery plan)

Focusing on the meat

Can significantly affect deposition prep.Your main trial witness on reliance said in deposition he doesn’t even remember the meeting?

Can significantly affect deposition listYou skipped a relatively minor witness – but she turns out to be the only one who can authenticate a key document

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Early Outline of Proof (cont.)

Can significantly affect affirmative discoveryMinor witness we never thought to deposeDocument category we didn’t realize we neededDocument we needed to include in RFA/authentication

Can significantly affect adequacy of collectionWitness was below agreed seniority cut-off for collections, but turns out we’re relying on her to establish key fact

Can significantly affect discovery horse-trading

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Early Outline of Proof (cont.)

Doesn’t do (as much) good sitting in the files

Read it!!Update it!Circulate it!

Understanding what we have, and what we really need, is not a one-time assessment

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Early Planning and E-Discovery

Duty to preserve extends to “key” custodians, which requires early identification of key playersEarly identification of custodians (and data sources) required for discovery planning conference (Rule 26(f))“ESI Plans” frequently involve prioritizing witnesses and data processing

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Now Flip It

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What’s the Other Side Thinking?

One-sided jury instructions?Concise Outline of Proof

Identify rebuttal witnesses and documentsWitness/deposition prepCross-examinationSubstantive document review

Help to flag and rebut problem areasCase assessment and settlement

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Now we have a plan, and ...

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The Onslaught Begins

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Documents

Transcripts

Interviews

Memoranda

Individual Information

Public Source Material

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Keeping Track of Your Documents

Where did this subset come from?Immediate source log, even if dealing only with paperTrack electronically or in automated fashion in review platform

Collection memoIncludes leads, sources, ESI, limitationsDocumentation of steps, questions

Production LogNot the automated/vendor part (source, bates range, etc.), but reasons for particular document productions – e.g.,

Responsive to RFP 32 re market studies (even though produced as kept in ordinary course)Document ranges linked to cover letters Produced in response to meet-and-confer letter of xx/yy/zz as evidence of out-of-pocket costs

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Make Your Documents Useful

Native Electronic Files (ESI) should be produced/received as:

TIF imagesWith extracted textWith metadata load files

Paper documents should be produced/received as:

TIF imagesWith OCR textWith unitization and custodian/source dataOptional: Coding of key fields, such as doc date

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Keeping Track of Your Documents

Pre-production substantive review?If possible, emphatic yes!

Informs outline of proof and overall strategyAvoids surprisesLikely saves time

But may not yet know everything to look forDeadline/budget may not permit

Not one size fits allNature of particular collection set – e.g.,

Public filings, press clippings, financial runs in non-financial caseCEO, key witness subset, attorney files

Halfway “smoking hot” approach

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Document Review & AnalysisMany options for “who” reviews:

Partners and associatesStaff attorneysContract attorneys

Careful quality control and process is keyPeriodic samplingAnalysis of work product and escalation of issues

Coding options Subjective“Temperature”

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Fact ChronologyIn addition to document database?

FACTS! From interviews, depositions, public sources – case is so much more than the documentsFinding the missing links

Coding, but don’t go overboard (check the box)The standard: hot, relevant, or non-trivial?

Unwieldy?Becomes robotic

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Fact ChronologyMeaningful entries!!

Smith phone call with Jones vs. Smith calls Jones to watch out for suspicious end-of-month sales claims

Uncertain events/facts or datesSource of course

Bates, email to/from, Dep. Tr. p.xx, Response to Interrog. 43

HyperlinksExporting from document management database

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Fact Chronology – ExampleDate: 12/31/02Event: “GANTT” Chart Showing Division of Responsibility for Defendant’s 1992 Project. Great document for depositions to show who worked on what.Issue: Project Scope [from drop-down]Main witnesses: Alias, Smith & JonesSource – BCR 00432033 [hyperlinked]Follow up: ask expert meaning of “NFW” on p.38; do we have final of this draft? reply to this email?

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Fact Chronology

Shared, multi-user systemSharePointLexis-Nexis CaseMapWest Case Notebook

Who makes the entries –Each attorney or central paralegal?Avoiding duplication of effort

Is anyone reading this?Daily or weekly new entry report

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“Clopening” Statements

For both sides of caseMajor themes, best factsMuch less detailed, more thematic than proof outlinesTop 10-15 documentsEarlier is betterJury research use

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Pleadings/FilingsOnline, shared storage in intranets and extranets such as SharePointOrganized by subject, not chronologically

Discovery MotionsPlaintiff’s Motion to Compel Production of Journal EntriesDefendant’s Opposition to ...Plaintiff’s Reply ...Transcript of Hearing on Plaintiff’s Motion ...

Requires some attorney attention

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Using Intranets to Manage Litigation

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Storing Information on Intranet

Case CalendarCase contactsCase tasksCorrespondenceCourt filesKey documents (or doc review platformExhibitsTranscripts (alternatives exist)

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Client Access – Facilitate Sharing

Real-time access to court file, correspondence, legal research and other work productAllows collaboration –bi-directional upload and download of documentsSecurity of intranet data is critical

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Other Critical Tools – Cast of Characters

Particularly helpful in early stagesBasic contact information, position/employerPopulate with Internet/public record informationInterviewed? Deposed? Transcript/summary memo?

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Cast of Characters ExampleDoe, CherylCurrent employee, 555-666-7777Acme CFO since 2007 Interviewed 8/6/09; Deposed 11/4/09Bullets:

Told Smith not to book 2006 Q4 last day $20 million salesInitially refused to sign certification to auditor

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Critical Tools (cont.)Witness Files

List of topics, questions, documentsInterview memorandaDeposition Outline

For trial or SJ, will have key points or documents not covered in deposition

TranscriptsFlash Summary

Airport ruleWitness references in other depositions

Case calendar (SharePoint)

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Team CoordinationFor particularly complex matters with multiple subteams –

Concise daily/weekly team or individual reports

Prepared for deposition of __; researched doctrine of __.Next week meeting with damages expert on mitigation issue

Videotaped case overview, document review instructions, for new members

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Team Coordination/ Succession

Witness Protection Program Memo If I disappear tomorrow, what does my successor need to know about who’s doing what; location of hard copies; locally stored top secret files, etc.;

How to Memo on Using/Accessing DatabasesIn an emergency, can anyone on the team find a key document on short notice?