Best Practices: Litigation Timelining

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1 Best Practices: Litigation Timelining Early Case Analysis, Witness Prep and Cross, Motion Practice & More August 28, 2014 Gene Albert Principal, Lexbe LC

2 ediscovery Webinar Series Info Takes Place Monthly Cover a Variety of Relevant ediscovery Topics Presentations Available for Download by Registrants

3 ediscovery Webinar Series About Lexbe Lexbe is an Austin, TX based ediscovery software and services provider. Lexbe ediscovery Platform Lexbe ediscovery Platform is a hosted ediscovery processing and review tool. Users can load a common file types, process for review, OCR for search, and conduct document reviews, productions, prepare for depos & analyze transcripts, conduct case analytics, prepare for dispositive motions, and provide litigation support during trial. Lexbe ediscovery Services Lexbe performs large volume document culling, processing from native to Native extracted, PDF or TIFF, load file creation, high-volume OCR of image files, Rule 26 and ediscovery consulting, and related ediscovery Services. Lexbe Sales sales@lexbe.com (800) x22

4 ediscovery Webinar Series Questions & Technical Issues If you have any questions or technical issues, please them to: Questions will be forwarded to Gene and answered during the webinar or via if we run out of time.

5 ediscovery Webinar Series Gene Albert Bio Principal of Lexbe LC, a provider of cloud-based litigation processing, review and document management software & ediscovery services. Frequent speaker and author on ediscovery and legal technology issues. Prior business experience in software, medical services and internet-based businesses. Prior legal experience as in-house counsel and in private practice. ediscovery consultant & expert testimony. Education MBA, University of Texas (2005) JD, Southern Methodist University (1983) BA, University of Texas (1979) Contact Gene Albert gene@lexbe.com

6 Agenda Why Timelining is More Important than Ever Early Case Analysis - Timelines or Data Analysis Why Timelining is Often Haphazardly Done Good Timelining Software Should... Timelining Uses Examples Conclusion

7 Data Types and Volume Keep Growing Zettabytes* Digital Information Created, Captured, Replicated Worldwide Voip iphones Peer-to-Peer 2.8 zettabytes of information were created Online Storage and replicated during 2012, a 56% increase Digital Cameras from 2011 (IDC) Facebook LinkedIn DropBox Backup Devices Elastic Storage SaaS Google Streets Personal Blogs Skype World Satellite Images Personal Scanners Customer Service Recordings Public Webcams Google Goggles Netbooks Cloud Instance Servers PaaS Source: IDC Digital Universe Study (2012) * 1 Zettabyte = 1 Trillion Gigabytes 2015

8 Timelining - More Important than Ever More Documents and Evidence Vastly more data is captured and available than ever before. , text, document drafts, etc., Often provides a pretty complete record of contemporary thoughts and impressions. Attorneys Less Involved in Documents Early Use of junior or outside reviewers. Too many documents, too little time. Productions can now be completed without attorneys looking at key documents in detail. Challenge of Finding the Key Documents Still only a few really key documents, but harder to find now. A pony in there somewhere Learn Case as You Go Does Not Work Anymore In past, attorneys would learn the case as the case proceeded

9 Timelining - Advantages Early in Case Find New Documents, Data Sources and Custodians Key document and fact analysis lead to new document/data sources Coordinate Witnesses with Evidence Avoid witnesses being discredited Tie Action Elements/Jury Instructions to Evidence Do the facts in the documentary evidence support legal elements of the action? Relate documented case facts to intended jury instructions Build a Coordinated Case Story Legal case consistent with the documentary evidence Story facts consistent with the documentary evidence

10 Dangers of Bad/No Timelining Your Witness Testifies Inconsistent with Evidence Witnesses do not remember all the digital evidence Witnesses have selective and favorable memories of past actions Digital evidence must be examined and organized make consistent Failure to do so risks your witnesses being compromised Failure to Take Advantage of Opposing Witnesses Opposing witnesses testimony and story should be tied down to avoid later fabrication and retelling Attorney must have a good idea of the documentary evidence to be able to commit opposing witnesses testimony Lose Opportunity to Value Case Early Problem of leaking bad facts over time. Need for accurate Early Case Assessment to be able to properly value your case.

11 Timelining and Early Case Assessment Ambiguity in Term Early Case Assessment Used two different ways Original Use - Assess case facts and witnesses Key participant and document ID Witness interviews Timlining Recent usage Quantitative analysis of incoming electronic stored information (ESI) Statistical distribution of and other case documents by time, custodian, etc. Both valuable but different

12 Why is Timelining Often Haphazard? Attorneys Not Involved in Early Document Review Attorneys not involved in early document collection and review Timeline Delegation Timelining left to junior associates or paralegals Delegation important and beneficial, but can lead to senior attorney ignorance of key facts Inadequate Tools Often done in Word (WordPerfect) or on a legal pad Limited searching and no dynamic updating Limited or not document linking Leads to always out-of-date timelines of limited usage

13 Good Timelining Software Should Be... Easy to Use Software-based & intuitive Shared & Accessible Limited value if accessible/maintained by only one person Online & Secure Allow access anytime and from home, on road, etc. Fully encrypted and secure Linked to Files/Evidence Close tie-in with original documents, notes and coding Allow Issue Coding, Filtering and Sorting Organize and view by key participants, issue, date, materiality, etc.

14 Timelining Uses Witness Prep and Cross Comprehensively prepare your witnesses Be better prepared to cross and discredit opposition testimony Transcript Analysis Structured fact extraction is more functional than depo summary Relate key transcript facts to other location in depo or other depos Relate also to supporting exhibits and other evidence Case Evaluation & Settlement Negotiations Close tie-in with original documents, notes and coding

15 Timelining Uses (more) Client Meetings Help clients during case progression to see how strong their case is. Assists in maintaining a accurate ongoing case valuation. Helps witnesses see how their testimony fits into the bigger picture. Motion Practice Dispositive motions happens quickly finding key evidence is challenging. Having key evidence previously identified,organized and linked to documents allows for quick effective response. Trial Support Keep timelines updated during testimony allows for effective and fast cross and support. Basis for Time-based trial graphics for juries and judges.

16 Examples: ID Key Case Participants

17 Examples: Issue Creation Issue Creation from Cause of action elements Anticipated jury instructions Story facts For claims, defenses For your and opponents actions

18 Examples: Timeline & Depo Prep

19 Examples: Open Documents from Timelines Link in Timeline opens document in Doc Viewer

20 Examples: Assigning Docs to Deponents

21 Extract Facts from Depos & Exhibits

22 Examples: Fast Motion Practice

23 Examples: Find & Filter Facts & Issues

24 Summary Timelining is More Important than Ever Data is growing fast Facts get lost in the sea of data Attorneys are less involved in early review and production Good Legal Timelining Software is Available Structure by issue, case participants, materiality, etc. Linked to actual documents Online, assessable by legal workgroups and secure (encrypted) Timelining can be Very Useful Prepare and cross witnesses Case valuation and settlement discussions Client meetings Prepare and respond to summary motions Dynamic support during trial

25 Lexbe ediscovery Platform FEATURES Cloud-based litigation document management software Self-administration Native (Office, etc.) processing Automatic OCR Early case analysis Dual-index search Exact & near-dup ID Doc Review & issue tagging Blended productions Transcript management Timelining, depo prep Dispositive motions Trial document management

26 Lexbe ediscovery Services ESI Culling Reduce ESI stores to manageable sizes with DeNIST, deduplication, date culling and keyword culling. Metadata extractions and PST reconstitution is available as well. ESI Collection Flatten and extract native file attachments and metadata to create loadfiles in preparation for native or near native review. Native Processing Convert native documents, including Outlook and Microsoft Office files, into TIFF or PDF format for searchability, bates stamping, and preparation for online review. ediscovery OCR Apply optical character recognition to increase searchability of PDFs, TIFFs, or document-formatted JPGs or PNGs. NearDup Groupings Identify key documents, group similar documents, ensure consistency in privilege coding, and enable threading.

27 Thank You Contact Info Gene Albert: Lexbe Principal (512) Stu Van Dusen: Marketing Manager (512) Lexbe Sales: (800) x22 Webinar Questions:

Stu Van Dusen Marketing Manager, Lexbe LC. September 18, 2014

Stu Van Dusen Marketing Manager, Lexbe LC. September 18, 2014 Best Practices: Litigation Document Management Applying The Latest Lexbe ediscovery Platform Features and Functionality for Fast and Collaborative Reviews and Productions September 18, 2014 Stu Van Dusen

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