The volumes of data involved in Multi District Litigation and Class Actions are exploding in both size and diversity, with no end in sight. Analysts project that the volumes of data being produced will double every two years, which is consistent with the growing volumes of data hosted in Nextpoint’s litigation platform.
Add to this a dramatically evolving technology landscape that is accelerating the pace of change. Changes to the technology landscape that used to take decades now happen within years. For example, Apple introduced the iPhone in 2007 and launched the iPad just a few years later in 2010. Similarly, Facebook was founded in 2004 and within eight years it has gained a billion users. That kind of change used to take decades to happen.
As a result, the increasing technical challenges in managing large data sets have forced senior litigation partners to address technical challenges once left to paralegal, IT and support staff. In our experience, these partners have a wealth of litigation and procedural expertise, but are now seeking decision-making frameworks by which to determine the best technology solution for individual Multi District Litigation (MDL). Because complex litigation of this sort can take decades to resolve, decisions made today will reverberate throughout the lifetime of the litigation.
This is a daunting order, one many decide to ignore. However, finding an appropriate, durable technical platform today is far more achievable than at any time in recent history as a result of the increasing power, capacity, bandwidth and speeds of today’s computing infrastructure.
This excerpt from our white paper on directing multi district litigation outlines seven key questions to consider developing a technology strategy for your law practice.
1. Do We Need a Technology Strategy?
The initial reaction on behalf of most litigators is to turn to in-house resources, including litigation support staff and paralegals to take command of the technology strategy. As a result, the fallback approach is either to appropriate existing paper-based processes or to repurpose existing in-house technology in a stopgap fashion.
In some instances, this approach may be sufficient, but only at the early stages of the case. However, any cost savings the client realizes in the startup phase will not survive the life cycle of the litigation. That’s because when technology decisions are deferred, duplicative work will need to be done later on once a final technology solution is implemented.
2. Can We Handle Full Scale Discovery Internally?
Given the complications of managing MDL in the data-rich world we live in, no firm or collection of firms can hope to manage the entire process efficiently. Until discovery begins in earnest, existing document management systems and small scale legacy databases can handle the legal research and motion practice necessary to complete this procedural phase of the case. However, this work will need to be repurposed, imported, and reviewed into a full featured system as the case goes forward.
A comprehensive technology strategy becomes essential once a case management order is in place, collections and preservation procedures are being run, key custodians identified, and dates for interrogatories, responses, and data productions are set. Simply put, the volume of data and complexity of the challenges will overwhelm even the most sophisticated law firm or corporate legal IT department, and a great deal of time and effort can be wasted in an effort to ‘home brew’ a solution.
3. What If Discovery Is Only Toward Class Certification?
Discovery before Rule 23 class certification hearings may accelerate some aspects of the relevance and privilege review process – with significant stakes involved for both plaintiff and defense counsel, given the impact of a negative outcome.
Limited discovery is often granted specifically for the purpose of determining the class, but this ultimately will have little real-world impact on the decision of which technical platform to use in discovery. Eventually, regardless of the disposition of the class, each of the individual cases comprising the MDL will require discovery. Again, ignoring or delaying standardization will inevitably result in duplicative efforts.
4. Do We Need To Share Discovery With Co-Counsel?
This is a question generally limited to defense counsel. The Plaintiffs Bar has developed highly organized systems and relationships regarding discovery. Normally, parties set up cost-sharing mechanisms to distribute the risk of the matter and assign costs to each plaintiff firm – often with very granular pass-through mechanisms allowing certain firms to use discovery services as a revenue and profit generator.
For defense counsel, the question of whether to share discovery is often colored by the perception that utilizing legacy, in-house systems and a piecemeal approach delivers cost-saving versus a dedicated infrastructure. However, this analysis does not withstand even the most basic scrutiny. Total costs of data management can only be lowered by sharing discovery resources – as opposed to an ad hoc strategy where every firm and client utilizes their own system.
5. Can We Eliminate Duplicative Discovery Efforts?
28 USC § 1407 sets up the MDL panel in situations where the court is overwhelmed by cases in which there is related discovery. A ‘many silo’ strategy where each firm stores their own data is counterproductive to this end. Simply put, if law firms are going to keep their processes separate, what is the point of an MDL?
The exact purpose of an MDL is to streamline procedures by consolidating related proceedings into a single matter. This presents tremendous opportunities for streamlining efficiency, protecting privilege, improving the quality of lawyering, and reducing overall costs for defending cases by sharing a discovery and trial practice infrastructure.
Unfortunately, when MDLs are treated like non-MDL litigation, the result is the opposite, substantially increasing the complexity and cost associated with managing these litigations.
6. Are We Paying For Our Clients’ Litigation Risk?
An emerging trend is for corporate clients to push back on outside counsel so that invoices for food, photocopies and legal research – items that once were rubber-stamped by companies – are drawing howls.
Any cost-savings associated with using in-house capabilities are supposed to be derived from a lack of incremental expenditures. Unfortunately, this is not how MDLs are working in practice. Costs are in fact being absorbed by the firms involved through additional hardware and software purchases, which in turn are passed back to the client via lost hours in productivity or technical hours billed.
Additionally, in-house counsel are taking increasingly active roles in the litigation, drafting briefs, examining witnesses, and participating closely in the overall case strategy. These active, in-house lawyers are particularly aggravated when presented with an invoice for time spent to send them depositions and documents that they have already processed. Additionally, law firm systems are often not designed for non-firm personnel to access data on servers that house confidential data from other clients of the firm.
This puts law firms in an economic bind. By definition, the firms’ business interests are not to absorb the litigation risks of its clients; its interests are in providing legal counsel. When forced to absorb the costs of data management – no longer an insignificant cost – the final result will always be a pass through expense to the client.
7. Are End-Clients Getting A Raw Deal?
Most importantly, end-clients are denied the highest and best use of their legal counsel because of the lost time it takes for lawyers to find information. The return on investment for an effective data infrastructure that allows law firms to quickly and efficiently find key data is offset by the time the lawyers are spending wrangling with large data sets.
Too many billable hours are spent by lawyers and support teams simply looking for data. Not being able to find the needles in haystacks are increasingly overwhelming the ability of lawyers to effectively practice law. Because of the volumes of data involved in most contemporary MDLs, acquiring a centralized, searchable, scalable solution is a primary requirement for an effective litigation effort.
There Is A Better Answer
Solving these challenges with current internet and cloud-based technologies is the only answer. The volume of data expansion is directly the result of the internet. For this reason, an answer rooted in internet technologies is the only feasible solution going forward in a cost-effective, systematic method. Throwing additional funds at outdated, non cloud-based legacy technology will simply not solve the problem – and most litigators we work with have already learned this lesson the hard way.
Download the full white paper for more tips on developing a technology strategy for Multi District Litigation.
