Lexbe eDiscovery Webinar- Best Practices: Litigation Timelining

Best Practices: Litigation Timelining

Gene AlbertPrincipal, Lexbe LC

Early Case Analysis, Witness Prep and Cross, Motion Practice & More

August 28, 2014

eDiscovery Webinar Series

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Lexbe eDiscovery Webinar Series. Best Practices: Litigation Timelines. August 28, 2014

Info

eDiscovery Webinar Series

Lexbe is an Austin, TX based eDiscovery software and services provider.

○ Lexbe eDiscovery PlatformLexbe 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.

○ 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 x22


mailto:[email protected]

If 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 SeriesQuestions & Technical Issues



○ 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.

○ EducationMBA, University of Texas (2005)JD, Southern Methodist University (1983)BA, University of Texas (1979)

○ Contact Gene [email protected]


eDiscovery Webinar SeriesGene Albert Bio

Timelining Best Practices


Agenda

○ Why Timelining is More Important than Ever

○ Early Case Analysis - Timelines or Data Analysis

○ Why Timelining is Often Haphazardly Done

○ Good Timelining Software Should. . .

○ Timelining Uses

○ Examples

○ Conclusion



Data Types and Volume Keep Growing

Digital Information Created, Captured, Replicated Worldwide4

3

2

1

2005 2010 2015Source: 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)

VoipEmail

iPhones Peer-to-Peer

Online StorageDigital Cameras

Facebook | LinkedIn DropBox | Backup Devices

Elastic Storage | SaaS | Google StreetsPersonal Blogs | Skype | World Satellite Images

Personal Scanners | Customer Service Recordings Public Webcams | Google Goggles | Netbooks | Cloud Instance Servers | PaaS



Timelining - More Important than Ever ○ 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.

○ 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.

○ Challenge of Finding the Key Documents+ Still only a few really key documents, but harder to find now. ‘A pony in there somewhere’

○ ‘Learn Case as You Go’ Does Not Work Anymore+ In past, attorneys would ‘learn the case’ as the case proceeded



Timelining - Advantages Early in Case

○ Find New Documents, Data Sources and Custodians+ Key document and fact analysis lead to new document/data sources

○ Coordinate Witnesses with Evidence+ Avoid witnesses being discredited

○ 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

○ Build a Coordinated Case Story+ Legal case consistent with the documentary evidence+ ‘Story facts’ consistent with the documentary evidence



Dangers of Bad/No Timelining

○ 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

○ 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

○ 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 and Early Case Assessment

○ Ambiguity in Term ‘Early Case Assessment’+ Used two different ways

○ Original Use - Assess case facts and witnesses+ Key participant and document ID+ Witness interviews+ Timlining

○ Recent usage+ Quantitative analysis of incoming electronic stored information (ESI)+ Statistical distribution of email and other case documents by time, custodian, etc.

○ Both valuable but different



Why is Timelining Often Haphazard?

○ Attorneys Not Involved in Early Document Review+ Attorneys not involved in early document collection and review

○ Timeline Delegation+ Timelining left to junior associates or paralegals+ Delegation important and beneficial, but can lead to senior attorney ignorance of key facts

○ Inadequate Tools+ Often done in Word (WordPerfect) or on a legal pad+ Limited searching and no dynamic updating+ Limited or not document linking+ Leads to ‘always out-of-date’ timelines of limited usage



Good Timelining Software Should Be. . .

○ Easy to Use+ Software-based & intuitive

○ Shared & Accessible + Limited value if accessible/maintained by only one person

○ Online & Secure + Allow access anytime and from home, on road, etc.+ Fully encrypted and secure

○ Linked to Files/Evidence + Close tie-in with original documents, notes and coding

○ Allow Issue Coding, Filtering and Sorting+ Organize and view by key participants, issue, date, materiality, etc.



Timelining Uses

○ Witness Prep and Cross+ Comprehensively prepare your witnesses+ Be better prepared to cross and discredit opposition testimony

○ 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

○ Case Evaluation & Settlement Negotiations + Close tie-in with original documents, notes and coding



Timelining Uses (more)

○ 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.

○ 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.

○ 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 PracticesExamples: ID Key Case Participants


Timelining Best PracticesExamples: Issue Creation


○ Issue Creation from+ Cause of action elements+ Anticipated jury instructions+ ’Story’ facts+ For claims, defenses+ For your and opponents actions

Timelining Best PracticesExamples: Timeline & Depo Prep


Timelining Best PracticesExamples: Open Documents from Timelines


○ Link in Timeline opens document in Doc Viewer

Timelining Best PracticesExamples: Assigning Docs to Deponents


Timelining Best PracticesExtract Facts from Depos & Exhibits


Timelining Best PracticesExamples: Fast Motion Practice


Timelining Best PracticesExamples: Find & Filter Facts & Issues


○ 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

○ 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)

○ 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

FEATURES


Lexbe eDiscovery Services

○ ESI Culling+ Reduce ESI stores to manageable sizes with DeNIST, deduplication, date culling and keyword culling. Metadata extractions and PST reconstitution is available as well.

○ ESI Email Collection+ Flatten and extract native file attachments and metadata to create loadfiles in preparation for native or near native review.

○ Native Processing+ Convert native documents, including Outlook Email and Microsoft Office files, into TIFF or PDF format for searchability, bates stamping, and preparation for online review.

○ eDiscovery OCR+ Apply optical character recognition to increase searchability of PDFs, TIFFs, or document-formatted JPGs or PNGs.

○ NearDup Groupings+ Identify key documents, group similar documents, ensure consistency in privilege coding, and enable email threading.


Thank YouContact Info

Gene Albert:Lexbe Principal

[email protected](512) 686-3382

Stu Van Dusen:Marketing Manager

[email protected](512) 843-7672

Lexbe Sales: [email protected](800) 401-7809 x22

Webinar Questions: [email protected]










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Lexbe eDiscovery Webinar- Best Practices: Litigation Timelining