The anti-technology litigator is your litigation team’s secret weapon. True, we have seen the warnings that litigators will soon become extinct unless they become tech-savvy. Yes, clients’ efficiency demands and ethical dictate require lawyers to evolve and adapt to changing technologies. But it is equally true that application of technology to discovery and trial preparation must be driven by good old-fashioned case management strategy.
Today, however, litigation teams face a crushing volume of discovery data and related technologically driven issues from the outset of the case. Before the Information Age, litigation teams routinely held a case kickoff meeting to review the elements of each cause of action, the affirmative defenses, the facts in dispute and necessary legal research.
Too often, today’s teams are split—the technology team and the legal team. This bifurcated case management model is unwarranted and risky. Our clients would be better served by unified litigation teams of tech-savvy and less technically inclined litigators embracing a merits-driven strategy that addresses Information Age realities and requires proportionate discovery by jointly tackling questions such as:
1. What must we prove? The necessary proofs guide our client interviews, party and third-party discovery, and assessment of core documents necessary to support our claims/defenses. The assessment of the elements of the causes of action/defenses will highlight legal issues requiring additional research. After outlining the proofs and open legal issues, the team can tackle the technical aspects of potential evidence preservation (whole information system hold versus server/database specific holds and/or time frame/custodian hold), identification and collection (at the server or end point, performed by software, company information technology personnel, forensic team and/or custodian) of necessary data.
2. What facts are disputed? Synthesizing the hotly contested facts encourages the team to: (1) frame possible motions to dismiss; (2) identify anticipated “hot docs” and create a coding palette for both trial issues and witnesses; and (3) narrow the relevant time frame to prioritize the review of critical time periods and to limit discovery expenses.