Written by: Lissa Summers

In September of 2018, I had the good fortune to join the litigation practice group at Worden Thane. Before coming to Missoula, I worked for a large Seattle-based firm for more than 30 years – as a copy clerk, then document clerk, and, for the last 20 of those years, a litigation paralegal. Or, as a colleague’s daughter liked to put it, a Paraweasel.

An important part of the journey that brought me here is my experience with and excitement about e-Discovery.

For the sake of this discussion,

e-Discovery means the exchange of electronically stored information in litigation, including identifying, collecting, reviewing, and producing information obtained from electronic media of all kinds.

I hope that people reading this already share my enthusiasm for e-Discovery and the opportunities it affords legal professionals to do our work more effectively, more efficiently, and more economically. Just in case you aren’t familiar with e-Discovery, or are struggling to see its value, I’d like to share some of my experiences over the years as we have gone from typewriters and photocopies to scanned images to a model that aspires to be paperless in the foreseeable future.

As we all know, technology has advanced dramatically over the last 20 years and, as technology has evolved, so has the way in which litigators conduct discovery. In 1998, when I first became a paralegal, much of my job consisted of managing boxes and binders filled with documents and struggling, along with the attorneys I worked with, to fully digest and understand large volumes of information and preparing that information to be produced to the other parties in discovery. We flipped through pages and pages of documents, using Post-it notes and highlighters to keep track of what was most important. Then, we got out the Bates numbering machine to apply control numbers to the pages and made photocopies to be sent to the other parties, usually via legal messenger or courier service. Most law firms didn’t have the ability to scan to PDF at that time so a lot of heavy lifting was involved, and time had to be allotted to physically get documents from point A to point B. Sometimes, we had to haul multiple boxes of notebooks to the courthouse just to file a motion. It was low-tech and it worked, but it was clunky as heck, time-consuming, and subject to human error.

I recall one case I worked on where the Plaintiff produced 30,000 pages of records, in no apparent order. There were hundreds, if not thousands, of duplicate records and there were no staples or clips to show where one document stopped and another one started. I was tasked with reviewing those 30,000 pages, one by one. I remember that only a small fraction of those pages contained anything useful, but the only way to find them was to go through every single page. So I did that. And, as luck would have it, I found the proverbial smoking gun – a single-page email, out of 30,000 pages, wherein the Plaintiff refuted her own claims. We ultimately got a defense verdict at trial in that case, at least in part because we were able to find the key documents we needed to defend our case. We could so easily have missed them. In contrast, by today’s standards, 30,000 pages are small potatoes.

Now that email, text messaging, blogging, and posting on social media are the most common forms of communication both in business and in our personal lives, the sheer volume of potentially discoverable data that is created would be impossible to manage without the use of new legal technologies.

Today, we have a variety of tools that allow us to review even greater volumes of data more efficiently and with less risk of missing something due to human error.

For example, our office recently handled a medical malpractice case involving a large number of personnel from whom we needed to collect and review over a million emails. We were able to collect the email accounts for each person and load them into our e-discovery review platform (Ipro) where we were able to run searches across the entire dataset to identify relevant documents. By first filtering by date and then searching for certain keywords and names, we were able to exclude irrelevant materials and reduce the volume of documents requiring review to about 80,000. The paralegal on the case was then able to conduct additional searches and review those search results, further reducing the number of documents requiring attorney review time to in the neighborhood of 5,000 documents. None of that would have been possible without the use of an e-Discovery review tool.

Although e-Discovery has not yet reached the status of “the norm” in Montana, it is being used to some extent in nearly every case; and the more we embrace it, the more effective we will be at conducting thorough and defensible discovery at a fraction of the cost.