“To err is human,” but in an industry as seemingly driven by precision as eDiscovery, errors are all too common. Yes, mistakes are going to happen. Which is why we can fall back on processes and procedures to ensure that even when those mistakes happen, there are controls in place to catch and correct them.
Technology can go a long way in helping with Quality Control, especially when you’re dealing with large document and data sets, which increase the chances of missing something. But technology is only as good as its users, and according to some in eDiscovery, you have to be on the lookout for impostors.
What is an eDiscovery impostor? It’s simply a vendor or service provider that doesn’t deliver up to the standard expected or demanded by the requirements of the industry and the law. If you find the pickles were left off of a hamburger after you pull out of the drive thru, sure, it’s frustrating, and depending on how much you love them, you may even turn the car around to get what you had coming. But in the legal space, meeting deadlines with accurately processed and produced evidence is literally the law, and there are very real consequences for not meeting expectations.
Sometimes it’s an issue with the technology itself. Tom O’Connor, director of the Gulf Coast Legal Technology Center and well-known industry thought-leader noted in an earlier article that errors loading data into many eDiscovery tools “Is still a mess. I (and people I work with) still get up to two-thirds of their load files with errors.” And then on the backend of that process, many solution-platforms lack reporting to help with QC. “This is absolutely crucial,” O’Connor stated. “And it’s astonishing to me how many programs don’t do it or do it in an incomplete manner.”
Service Provider Impostors
There are other types of eDiscovery impostors on the vendor and service provider side of things. Sal Llanera, who has over 25 years of experience in Forensic Technology, has held executive positions with Ernst & Young and other top accounting/consulting firms in New York supporting law firms in complex fraud and litigation assignments, and is the Founder and Principal of SL Data Management, shared some stories of his personal experiences with eDiscovery Impostors.
No QC on production deliverables:One time an e-Discovery outfit approached me through a friend and offered me $20/gig for processing. So I sent them some personal emails (gmail accessed via Outlook) as a PST for a processing test. About 30% came back as junk, most likely due to rendering issues. I asked them what happened, and they blamed my emails, then had the audacity to ask if I’d give them another chance.
People disappear when there are issues:With one particular vendor, we had some issues with the data over the weekend. No call back till a weekday. Come-on, we work with lawyers in a reactive environment. No weekend support? Subpar work-ethic. This situation actually hurt my business.
Did not process data: A few years ago, I asked a friend in the business to handle a processing job for me. I handed over the drive, and in return he bought me a cup of coffee. Great, right? Two weeks later, I found out he never processed the data. It was such a large dataset, he figured I wouldn’t notice. I no longer talk to him. And like the second example, this directly hurt my business.
How to Avoid eDiscovery Impostors
Like anything else where you need to check veracity, simply do your due diligence. Ask providers for references. And then ask those references questions like:
How many projects they’ve done with them?
Are they responsive to emails/communication 24/7?
Are they problem solvers?
Were there any other issues?
Were they resolved quickly and professionally?
Even when you think you know someone, a little bit of research in the beginning can make a world of difference with the outcomes.
In a recent Ipro survey, 68% of respondents said that less than 5% of their cases go to trial each year. This probably isn’t a surprise to those of us working in the legal industry. For many, the goal is absolutely that: get to a resolution as quickly as possible and skip trial all together. Because of this, a large portion of legal teams working in the eDiscovery space don’t ever consider tools that are designed for fact management and trial presentation. But that doesn’t mean there isn’t a place for them outside of the courtroom.
For example, whether or not a case goes to trial, the legal team has to build a strategy around the facts and the evidence. A fact management tool allows a legal team to connect those facts with specific pieces of evidence or custodians, along with annotations by attorneys or lit support, so they can begin building a case strategy while conducting document review.
Another example of using trial-based tools before trial is presentation software. Often, presentation software can be connected directly to your fact management tool, allowing a legal team to present the strategy or case during mediation, at a meet and confer conference, or any other time where they may need present key elements of the case (including documents with highlights and call-outs, or video deposition clips) in a clear and organized fashion.
That’s where a solution like Ipro for desktop comes in: it’s a full eDiscovery processing and review tool with built-in fact management (Case Story) and trial presentation (TrialDirector 360) components, allowing for a seamless workflow from data ingestion through eDiscovery to presentation. So if you never see the inside of a courtroom, or a large percentage of your cases end up at trial, eDiscovery and Trial technology can level the playing field for your firm.
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.
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.
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.
Find out how 5 legal teams overcame their challenges, utilizing Ipro’s Hybrid approach to eDiscovery.
Find out how 5 legal teams overcame their challenges, utilizing Ipro’s Hybrid approach to eDiscovery.
There are a lot of stakeholders and processes involved in eDiscovery, which makes it an extremely complex adventure. For many years, people said that with the right software, you could handle everything. But software alone isn’t enough. That’s why you need a technology partner to help navigate the unpredictable waters of eDiscovery.
When software isn’t enough: Data continues to grow in size and complexity, and the need for that data in investigations and litigation is now a daily occurrence. For an agile response, innovative approaches to eDiscovery are necessary, and rather than trying to go at it alone, forward-thinking legal teams will look toward a hybrid approach.
Ipro’s hybrid approach to eDiscovery means we’re more than just a software producer: we bring a true partnership to the table via our Case Managers, whose ultimate goal is to become an extension of your team – to know the details of your data, the deadlines that are looming, and provide options for the most efficient and stress-free experience as possible.
As a way of highlighting this partnership, we’re featuring our Case Managers here in the Ipro Newsroom.
Lori Bregenzer brings over 20 years of litigation technology experience to the Ipro Services Team. Her background as the Litigation Technology Manager for a large law firm and subsequently as the owner of a boutique litigation software training and consulting company has built a solid foundation of both technical and customer-focused skills which she leverages in her role as Case Manager for Ipro.
Here are the highlights of our conversation:
What makes Ipro Case Managers unique in the eDiscovery industry?
“Decades of industry experience using, training, supporting, and consulting on litigation technology. In my positions prior to joining the Ipro team, I struggled to find a service provider who took the time to learn the intricacies of my projects. Quite often, my project was treated as ‘just business’. It’s very rare in this industry to find a provider who strives to becomes a true partner.
“We know the Ipro solutions better than anyone else. We also know our competitor’s software, because we’ve actually used it in the past. Our goal is to become an extension of your case team, bringing value by building in efficiencies, custom workflows, and unparalleled technical skills.”
How does an Ipro Case Manager help clients?
“We take time to learn the details of your project so that we can suggest ways to simplify the complex discovery tasks you face every day. Our goal is to ease the many pain points of processing, document review, and production.”
What are some of the biggest challenges / trends you’re seeing in the eDiscovery industry?
“Collecting, organizing, and managing the ever-expanding volume of data involved in litigation today.”
How does Ipro generally and Ipro’s Case Managers specifically solve these eDiscovery issues?
“Ipro is completely scalable in our solutions. No project is too big or too small. Ipro’s Case Managers have years of experience dealing with all levels of projects and the many difficult processing and production requests that invariably come up.
“This personalized approach to eDiscovery services is what draws me to the Case Manager position. As your Case Manager, I make it my business to build a relationship with your legal team. We’ll discuss your data processing requirements up front and develop a game plan to get your review off to a quick and successful start. I’ll point out ways to conduct document review more efficiently, and thus more cost effectively. Additionally, I’ll know when the deadlines are coming and proactively work with you to not only meet them but beat them.”
To Learn more about Ipro’s Managed eDiscovery Services, visit us here!
The old adage, “Those who do, do; and those who can’t, teach” is completely off-base, because the value of getting education from people who have been in your position and have experienced the difficulties first hand is priceless. That’s why people in all industries and trades seek out those veteran practitioners to share their experiences and act as mentors.
And eDiscovery is no different, especially with its unique challenges. Which is why Ipro chose 3 veteran eDiscovery practitioners with decades of experience to speak on our latest webinar: eDiscovery from the Trenches.
Brittany Thaler has eleven years’ experience in supporting teams as a paralegal and hot-seat operator in numerous arbitrations, evidentiary hearings, and trials (both bench and jury), and as a Litigation Support Paralegal, she advised, created, and managed various eDiscovery matters and presentation of cases at trial.
Jaime Sheppard has managed eDiscovery projects spanning Am Law 50 firms and FORTUNE 50 companies in a variety of practice areas, including product liability, antitrust, insurance, commercial litigation, and intellectual property, as well as non-litigation reviews, working closely with case teams to devise discovery plans and protocols, manage reviews, perform technical quality control, coordinating forensic collection of sensitive documents, etc.
Lori Bregenzer brings over 20 years of litigation technology experience with a background as the Litigation Technology Manager for a large law firm and subsequently as the owner of a boutique litigation software training and consulting company. These experiences, coupled with her many software certifications as well as the designation of Certified eDiscovery Specialist from ACEDS, give her a vast knowledge of eDiscovery and legal technology.
In the eDiscovery from the Trenches webinar you will hear about:
Industry Challenges & How to Overcome Them (Education, Cost, Technology)
Tips & Tricks for Developing a Successful Workflow (Managing Data, Search Techniques, Analytics/TAR)
How Technology Can Level the eDiscovery Playing Field (Smaller Firms, Judges View, Accessibility)
Women in eDiscovery Phoenix Chapter Hosts Judges Roundtable
Photo: Front Row: Kate Mortensen (Chief Legal Officer, Xact Data Discovery), Jamie Sheppard, (Client Success Manager, Ipro Tech), Tiffany Trejo (eDiscovery Specialist, Ricoh eDiscovery), Judge Pamela Gates (Maricopa County Superior Court, Presiding Judge), Judge Danielle Viola (Maricopa County Superior Court, Victoria Stevens (Sr. Paralegal, Wilenchik & Bartness, P.C.); Second Row: Judge Samuel Thumma (Arizona Court of Appeals), Lisa Waldin (Project Manager, Ryley Carlock), Judge Dominic Lanza (US District Court for the District of Arizona)
On October 17th, the Phoenix Chapter ofWomen in eDiscoveryhosted a Judges roundtable event at the downtown offices of Snell & Wilmer. Four judges came to speak to over fifty attendees about eDiscovery trends and best practices they are seeing from the bench. Lunch was sponsored by Ipro.
WiE was launched in 2007 as a non-profit organization focused on providing women with legal technology education, networking and leadership opportunities. It’s now 28 chapters strong and growing, with each hosting monthly or quarterly meetings comprised of professionals within the legal industry including law firm and corporate legal attorneys, litigation support professionals, paralegals, legal IT staff, consultants, and vendors.
Below are highlights of what each speaker shared during the roundtable.
Hon. Dominic W. Lanza, US District Judge for the District of Arizona
eDiscovery Tip: “I don’t always hold Rule 16 meetings but begin with a Rule 26f conference right away. It may be your only shot to raise issues or concerns, so it’s vital that you find a way to be concise in disputes and crisply discuss scope with a focus on specifics and costs during the meet and confer.”
Before his appointment to the bench in 2018, Judge Lanza spent 10 years at the U.S. Attorney’s Office in Phoenix, where his responsibilities included serving as the chief of the financial crimes and public integrity section and, later, as the office’s chief assistant. Before joining the U.S. Attorney’s Office, he worked for five years at Gibson Dunn & Crutcher in Los Angeles, specializing in appellate litigation, and clerked for Judge Pamela A. Rymer of the Ninth Circuit.
Hon. Pamela S. Gates, Maricopa County Superior Court Presiding Judge
eDiscovery Tip: “I suggest a focus on cooperation by all parties through the 4 P’s of eDiscovery: Preservation, Production, Protection, and Proportionality. For example, if something can’t be produced, give reasons. The worst thing that could happen is to claim you’ve produced everything and have opposing counsel bring up something you’ve missed.”
Judge Gates was appointed by Governor Jan Brewer in September 2009 to serve on the Maricopa County Superior Court. She currently serves as the Presiding Civil Judge. Prior to this rotation, she served as the Associate Criminal Presiding Judge and the Associate Presiding Judge for Family Court (Downtown). Judge Gates served on numerous state-wide committees and received the 2018 Maricopa County Bar Association Judicial Officer of the Year Award and the Penny Gaines Collegiality Award. Prior to becoming a judge, she worked as a partner at Bryan Cave LLP.
Hon. Danielle J. Viola, Maricopa County Superior Court Judge
eDiscovery Tip: “Unless judges understand all of the details, they can’t rule. This is why it’s important to provide specific information, especially during proportionality complaints, and make experts like I.T. personnel readily available to answer questions.”
Judge Viola was appointed to the Maricopa County Superior Court in 2011. She currently enjoys a civil assignment and is chair of the Jury Advisory Committee for Maricopa County Superior Court, as well as serving on the Advisory Committee on the Rules of Evidence and the Court Interpreter Program Advisory Committee. From 2014 through 2019, Judge Viola presided over a criminal calendar where she also served as the Administrative Judge for the Post-Conviction Relief Unit and as the Associate Presiding Judge for the Criminal Department. Prior to joining the bench, Danielle she was a partner at Snell & Wilmer.
Hon. Samuel A. Thumma, Arizona Court of Appeals Judge
eDiscovery Tip: “Judges are strangers to the individual cases, so you need to be prepared to educate and explain. Anytime you have an ESI issue come up, it’s a learning opportunity for everyone. This is why it’s important to have eDiscovery experts who are able to speak to both the technology and legal concerns in clear language.”
Judge Thumma has served on the Arizona Court of Appeals, Division One, since 2012, serving as Chief Judge for two years ending June 30, 2019, and Vice Chief Judge for two years ending June 30, 2017. Before being appointed to the Court of Appeals, Judge Thumma served as a Judge on the Arizona Superior Court, Maricopa County, for nearly five years, presiding over criminal and juvenile matters (including nearly 250 trials) and serving as an elected member of the Judicial Executive Committee. Nationally, Judge Thumma is a Uniform Law Commissioner, where he chairs the Study Committee on Jury Selection and Service; is a member of the Committee to Monitor Developments in Civil Litigation and Dispute Resolution and chaired the Drafting Committee for the Uniform Employee and Student Online Protection and Privacy Act (2016). He is a member of the American Bar Foundation. By appointment of the National Center for State Courts, he serves on the Joint Technology Committee, a cooperative effort of the NCSC, the Conference of State Court Administrators and the National Association for Court Management. Judge Thumma is a frequent lecturer and author, having presented at more than 340 seminars and published 12 law review, and 50 other law-related, articles. Before joining the bench, Judge Thumma was a partner at Perkins Coie Brown & Bain, P.A., in Phoenix, and an associate at Arnold & Porter in Washington, D.C.
4 Challenges When Conducting an Enterprise eDiscovery Data Inventory
An important first step to help corporate counsel and their departments more efficiently manage enterprise eDiscovery data before litigation arises, is understanding your organization’s data landscape in order to avoid potential data pitfalls in the middle of a matter.
The challenge lies with the near infinite number of file types (and variations within each type) in which data can live. Every program and application you use creates different file types: email, chat, social media, planning and content-creation tools, etc. Different versions of the same program or application create variations of those file types, and different formatting within each of those can create still more variations.
Here are 4 Data Challenges any enterprise should discuss with their IT Director and eDiscovery Manager, so that they can begin a data inventory and put policies in place ahead of litigation, which will greatly cut down on roadblocks later.
The Fringes – Legacy and Bleeding Edge
Have you ever cleaned out your closet and found that shoebox full of cassettes from college? Businesses are no different. Many of their electronic files are stored as legacy file types which are no longer supported. A great example is one company who needed to review files which were saved on 8-inch floppy disks! Knowing this ahead of litigation is important.
On the other end of that spectrum, being on the forefront of technology is great, but when it comes to preparing files for eDiscovery, it can slow things down. Similar to knowing about legacy files, it’s also important to take note of recently developed software or applications your organization may use which creates unique file types.
New Data Sources – Mobile, IM, and Social Media (Oh My!)
Mobile devices can be difficult when it comes to eDiscovery for many reasons. They contain a large variety of file-types and data intermingled with a lot of private information, which may be privileged. Extracting specific information can be difficult and imaging an entire device can be costly. This is why it’s important to have policies in place to determine how mobile devices are used for business purposes.
Organizations are also relying on messaging platforms (Slack, Teams, and What’s App are good examples) and social media to conduct business. Data can usually be requested from the source company (For example, Instagram has a data request form in its Privacy and Security settings), but it can be difficult to put into a review-ready format. So, knowing if these platforms are a potential source of data—should litigation arise—is important.
The Oddballs – Unsupported Data Files
Besides the file types listed here, there are a myriad of other unsupported file types which may come into play (A good example are CAD files used by an architecture or construction company). Because they are used every day by members of an organization, the fact that they may be difficult to process for review may not be considered in the event of legal action.
Size Matters – Understanding Your Organization’s Overall Dataset
Besides knowing the file types your organization may use, knowing the size of that data is also difficult to capture, especially with the exponential growth of electronic information each year. Doing a data inventory will give you an idea of how much data is created for a given amount of time, as well as how much of that data may be ROT (Redundant, Obsolete, Trivial).
It’s easy to get stuck in a “that’s the way we’ve always done it” mentality, but eDiscovery data challenges shouldn’t get in the way of your enterprise legal team’s ability to quickly understand the facts in a matter. For more insights into your organization’s data landscape, Download the Ipro Pre-Litigation Data Inventory Checklist now!
For corporations, litigation is not a case of “if” but “when.” However, this risk can be mitigated with repeatable processes and preparation, especially when it comes to data. Moving data to Early Case Assessment (ECA) as soon as possible allows your legal team to quickly get to the facts of the case.
A first step in this process is to useIpro’s Pre-Litigation Data Checklist as a guide to effectively manage enterprise data in order to avoid potential data pitfalls in the middle of a matter.
Download the Ipro Pre-Litigation Data Inventory Checklist
*Editor’s Note: Today’s Ipro blog was written by Joshua Gilliland, a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.
Trial advocacy is a mix of law and theater, requiring a lawyer to know both the law and their audience. Attorneys must effectively argue their client’s case using the evidence and the jury instructions to show their client is right (or has been wronged), and it is up to the jury to put things right.
The opening statement is an opportunity to set the stage for what the trial is about, and the closing argument is the chance to tie all the issues together with a bow. One highly effective strategy for both is using video depositions, but they must meet the requirements in Federal or state court.
Strategic Reasons to Use Video Deposition Clips
Back in 2002, David Narkiewicz described the value of using video depositions in trial as follows:
Without a doubt, trial presentation software is most powerful when used to show a clip of a video deposition while simultaneously showing the transcript for the jury to watch and read. Instead of just showing a video clip, highlighting a particular comment by the witness with a color, such as yellow, can make the use of that clip extremely powerful. You can retrieve this clip by just typing in the page and lines of the transcript, and the video and transcript are played instantly on the screen.
Jurors today have lived with smartphones that allow them to watch videos in the palm of their hand, and many of these jurors are in Generation X or Millennials and want to hear the bottom line and not a presentation that manipulates their emotions.
This requires thinking about how to use short video deposition that conveys the key message, such as “day-in-the-life” videos, or using a specific passage of testimony that sums up a case are effective ways to maximize trial presentation technology to simply state complex information for the jury to understand.
Deposition testimony allows jurors to get an immediate look at a party (or party representative) in a lawsuit. However, just because you can show a line of deposition questions and answers, does not mean you should. The facts of the case can dictate the trial strategy.
As trial presentation expert Ted Brooks of Litigation-Tech has explained, video depositions of deceased parties were used in an asbestos reinsurance case from early in his career. Without the video depositions, the only way the jury would have “heard” the deceased’s testimony was to hear someone read it into the record.
The fundamental strategic reason for using a video deposition clip in an opening statement or closing argument boils down to effectively communicating the key facts of a lawsuit.
How to Prepare Video Deposition Clips
The first step in preparing video deposition clips in TrialDirector 360 is to have a synchronized video deposition. A video deposition can be synched in TimeCoder Pro, but it is highly likely a court reporter firm will provide a synced Digital Video Transcript (DVT file) that can be loaded into TrialDirector 6 or Trialdirector 360.
Video deposition clips can be created by selecting the relevant page and line designations within the transcript. Attorney colloquy and objections in the deposition should be edited out so the clip is only of the question and answer. It is often required that the questions before and after the relevant examination designation need to be included to give context to the answer. As every trial is unique, what needs to be presented can vary.
The main point of having a video excerpt in a closing argument or opening statement is for impact. This could be because a person is deceased, there is an admission of extreme importance, or the deponent gave inconsistent testimony at trial. There are numerous reasons to want to use a video deposition clip, but the key issue is presenting some testimony the jury will not forget when they begin deliberations.
Notes on Depositions from the Federal Rules of Civil Procedure
Federal Rule of Civil Procedure Rule 32 allows a party to use a deposition against an adverse party if the party had was present or represented at the deposition; had notice of the deposition; would be admissible under the Federal Rules of Evidence; and meets one of the Rule 32(a) requirements. Fed Rules Civ Proc R 32(a)(1)(A), (B), and (C).
Federal Courts have allowed video deposition excerpts in opening statements. In one case where a party brought a motion in limine to exclude the use of a video deposition, the Court allowed the video deposition because Rule 32(a)(2) states a deposition can be used for “any purpose” and the opposing party’s conduct was factually relevant and could be alluded to in opening statement. Northfield Ins. Co. v. Royal Surplus Lines Ins. Co. (C.D. Cal. July 7, 2003).
In another case, the proffering party was limited to use video deposition testimony under Federal Rules of Evidence 403 that prohibit cumulative evidence, because the deponent was going to testify at trial. Beem v. Providence Health & Servs. (E.D. Wash. Apr. 19, 2012).
In a complex technology case, the Court granted a motion in limine excluding a video deposition clip from an opening statement, explaining, “…if unrestricted, a video deposition can be shown once in opening, again during trial (at least once), and in closing in the exact same form. Repeatedly showing the same few deposition segments seems to exalt the relevance of those videotaped shreds of evidence over live testimony.” Hynix Semiconductor Inc. v. Rambus Inc. (N.D. Cal. Jan. 21, 2008), citing Federal Judicial Center, Effective Use of Courtroom Technology: A Judge’s Guide to Pretrial and Trial, 156 (2001).
The use of a video deposition in trial is subject to notice requirements under Federal and state Rules of Civil Procedure. In Federal Court, a party must provide a transcript of any deposition testimony the party offers. Fed Rules Civ Proc R 32(c). In California, there must be a notice in writing of the intent to offer video depositions into evidence, which allow for objections and video editing. Cal Code Civ Proc § 2025.340(m). It is pivotal to know the local rules for submitting evidence lists and any standing orders for using video depositions in trial.
 FEATURE: GENERATION X AND Y’S INFLUENCE IN THE JURY BOX, 50 Orange County Lawyer 42, 44.  THE RANDOLPH W. THROWER SYMPOSIUM: CHANGING LITIGATION WITH SCIENCE AND TECHNOLOGY: VIDEO DEPOSITIONS, TRANSCRIPTS AND TRIALS, 43 Emory L.J. 1071, 1075-1076  FEATURE: UNDERSTANDING AND USING COURTROOM TECHNOLOGY IN THE NEW HARRIS COUNTY CIVIL COURTHOUSE, 44 Houston Lawyer 30, 31  DEPARTMENT: LEGAL TECH: TECHNOLOGY IN THE COURTROOM: TRIAL PRESENTATION SOFTWARE, 24 Pennsylvania Lawyer 49, 49