USING COMPUTERS AND VIDEO TECHNOLOGY IN LITIGATION AND TRIALS
| Jurisdiction | United States |
(May 1996)
USING COMPUTERS AND VIDEO TECHNOLOGY IN LITIGATION AND TRIALS
Bradley, Campbell, Carney & Madsen, P.C.
Golden, Colorado
Shari Bjorkquist
Maureen Hofmann
Merrill Corporation
Denver, Colorado
Environmental and natural resources disputes often present challenges beyond those found in a typical commercial or regulatory dispute. They often involve multiple parties with diverse interests. The parties are not only commercial entities but government entities, private parties, citizen groups and public interest groups. Although the parties all have a stake in the disputed matter, their decision-makers may be geographically dispersed. The case management challenges can be extraordinary. It is not uncommon for the disputes to require historical investigation into events and transactions occurring decades ago as well as extensive geophysical and hydrologic investigation and analysis. Before producing documents each party may need to search multiple on-site storage areas and off-site archives. As a result, each party may produce hundreds of thousands of pages of documents. When multiple parties produce such huge volumes of documents to one another, each party finds itself faced with the challenge of storing, organizing and accessing more than a million pages of documents. At trial each party presents extensive technical information, scientific analysis and expert conclusions. To add to the complexity, environmental and natural resources disputes can spawn multiple administrative and judicial litigations including government enforcement actions, statutory cost recovery claims, tort claims and insurance coverage actions. And it goes on for years.
When parties are involved in such complex litigation, they have no choice but to use computers to manage the challenges. Its safe to say that the vast majority of lawyers use computers in their practices. Nonetheless, its startling to realize just how pervasive computer use has become in the last ten years. Lawyers use computers for:
• Legal research
• Factual research
• Document preparation
• Electronic document storage (imaging)
• Electronic correspondence (e-mail)
[Page 13A-2]
• Electronic transfer of documents (modem transfer)
• Facsimile transfer of documents (faxmodem transfer)
• Case and Budget Management
• Document management and research
• Deposition management and research
• Trial preparation
• Development of demonstrative evidence and visual aids
• Presentation of the case at trial
This paper addresses document and deposition management, the development of demonstrative evidence and visual aids and trial presentation. It does not endeavor to explain the application of rules of evidence or to teach trial skills or trial strategy.
USING COMPUTERS TO MANAGE DOCUMENTS
The scope of document production can be overwhelming. Parties may be required to produce documents covering many years of corporate life including details about acquisitions, mergers, divestitures, exploration, mining, drilling, milling and/or refining; waste disposal; purchases, uses and disposals of chemicals; research and testing; systems design; insurance; and regulatory compliance. After a party determines the scope of what it must look for and locates the documents, it must determine which ones it must produce and which it can withhold as privileged. The party may be required to list documents it is withholding as privileged and it is well-advised to devise a system to track documents it is producing. And because there can be later additional requests and supplementations, a party is well served by documenting when it produced various documents.
Space requirements. At the same time a party produces its own documents, it often receives documents from multiple other parties. Thus, the volume can quickly grow to fill many dozens and sometimes hundreds of boxes. Thus, the first challenge: how and where to store so many documents. In some multi-party litigations, the parties have tried to address the storage problem by creating a single central repository to which they all produce their documents and to which they all have access. Although this can ameliorate the problem, without computerized support, it does not solve it. Central repositories are remote from all or most of the parties. Each party still needs its own repository of some or all the documents for timely confidential access.
[Page 13A-3]
Accountability. If the task were only storage, there would be many options. But cases of this magnitude are not litigated by a single attorney representing each party. On the contrary, there are usually several attorneys, paralegals and secretaries accessing the documents on behalf of each party. In many situations an individual party may be represented more than one law firm and both firms may need access to the documents. Moreover, in the course of the litigation, many documents will also be reviewed and studied by various lay witnesses and expert witnesses. Given the volume of documents, the number of parties accessing the documents, the number of times documents will be removed from their boxes and carried to other locations for review or copying, and the duration of these complex cases, the risk of damaging and losing documents is severe.
Using Computer Imaging for Storage and Access
Computer imaging is a process that captures and stores an electronic image of a document. The image includes everything that appears on the face of a document including printed, typed, handwritten and photographic presentations. Depending on one's needs, the electronic image can be captured and maintained as a black and white image or, if needed, as a full color image. In fact, it captures the same image as the one captured by a photocopier. The difference is that a photocopier immediately reproduces the image on paper, whereas computer imaging stores the image on a memory disk.
A roomful of documents in a container of compact disks. The advantages of this technology are many. The images of as many as 10,000 pages can be stored on a single compact disk ("CD"). CDs can be read by a desktop computer and the document images displayed on the computer's monitor. Moreover, the computer can send the electronic image to an ink-jet or laser printer and the printer can produce a copy of the document, complete with handwritten marginalia and the document control number. Indeed, the document printed by this method can be as good a representation of the original as one produced by a photocopier.
The advantages are many. Instead of paying rent on a room full of boxes or cluttering hallways with stacks of boxes creating safety and fire hazards, you have a master set of the CDs safely stored off-site in a safe. Individual lawyers and paralegals at distant offices each have a copy of the CDs and, thus, have immediate access to the entire document repository at their desks. Indeed, a lawyer traveling to a take a deposition can take along a laptop computer and selected CDs or a CD containing the images of all the deposition exhibits and have access to thousands of pages of documents on the airplane and in the hotel room.
Limitations. But imaging has one significant limitation: like a photocopy, the images are "dumb" pictures. Documents that are produced by wordprocessing software store letters and words in "smart" electronic codes that represent letters and words. Because wordprocessing files are "smart," you can electronically search for words, phrases, dates or
[Page 13A-4]
names in such documents. For example, if you produce 500 or 5000 pages of documents using wordprocessing software, you can load those documents into a full-text search and retrieval system and the computer can search for and find the one reference to May 17, 1996, in all of those pages. Documents stored through imaging cannot always be searched in this manner. The heart of the problem is in the documents themselves.
Think about the documents that are produced. Some may be decades old. Some may have been produced on manual typewriters, some on electric, some typefaces are pica, others are elite or courier, some are handwritten, some were typed and have handwritten marginalia, some are carbon copies on onion skin paper, some are photocopies, some of the copies are cockeyed, some have holes punched in them, some are stapled, torn and mutilated.
Don't count on optical character recognition. Optical character recognition ("OCR") is a technology and process by which the image of a typed document is translated and stored, not as a "dumb" picture but as "smart" electronic codes representing letters. The technology works well with crisp and clean original documents that contain typefaces specifically designed for this process and well enough with common typefaces such as courier, Times Roman and Helvetica. It does not work consistently enough with the broad spectrum of documents found in the typical document production to make the application of this technology cost-effective in most litigations.
Indexing Documents for Search, Retrieval...
To continue reading
Request your trial