Litigation technology's evolution divides roughly into three eras. The first I call BC, which stands for "before copiers." In those days, paper was scarce and copies even harder to come by. We spoke in terms of case files, which may have included a few dozen discovery documents. Big cases meant a couple of expanding redwells.
Back then, people didn't talk about litigation support. Paralegals were few, document clerks nonexistent, and trial teams small. After all, most cases could be prepared the night before trial. All you needed to do was brush up on a few key documents and prepare your direct and cross-examinations.
Next came the "middle ages." This was the period of the photocopy machine. IBM and Xerox ruled this era until a wave of Japanese imports took the market. Paper proliferated. Suddenly, lawyers had to deal with boxes of documents rather than case files. Soon after came litigation workrooms and, ultimately, warehouses of documents. The term "document repository" came in vogue at the height of this era.
Litigation support emerged and flourished because trial lawyers couldn't begin to review and make sense of all this paper on their own. Instead, we created teams of associates, paralegals and document clerks to stamp, copy, review and cull through the boxes. Later came database software, designed to aid the process of searching, sorting and filtering all the paper. When the paper itself became unwieldy, we moved to imaging so that we could transport the paper without bankrupting our clients.
Today, we move into a third era of litigation technology. I call it AD—for "after digital." True, paper and photocopiers still abound. But an increasing portion of our written communications are digital, never once seeing the light of a printed page. Think about e-mail, manuals, reports, memos and even letters (often sent as attachments to e-mail). Many of these documents are never printed. Some experts put the figure at as high as 70 percent.
It leads to an unbelievable haystack. This has profound implications for litigation support techniques. Putting aside the obvious rise of forensic technologists and electronic media discovery firms, think about the volume of documents that litigators must now confront. Copy machines represented a linear technology—paper flow increased two times, three times, even five times, but in a linear progression, with the weight and cost of paper and ink acting as a governor. In the digital age, growth is exponential. Data storage is growing factorially and there is no end in sight.
Consider this simple example: One company employee sends an e-mail to 15 people. Ten people reply, with seven using the Reply All button, and a discussion ensues. All include the original message in their text. As replies and responses proliferate, the messages keep repeating. This data, which may never be printed, is stored on company servers, with copies being stored on employee hard drives as well. The company regularly backs up its mail servers, with each backup a perfect replica of the original. Tapes are saved nightly, weekly and monthly.
Quickly, a few e-mails become hundreds. Mail stores go from megabytes to gigabytes to terabytes. With nightly backups, one terabyte of e-mail and associated documents becomes five. Suddenly, the litigation support team is faced with reviewing 30 million digital documents. The task is daunting, if not downright impossible, at least using traditional methods. If one person can review 20 documents an hour, how long would it take to review 30 million? Answer: 187,500 days (assuming an eight-hour day). That's about 750 years.
New techniques are emerging to address this onslaught of digital documents, but there are no clear answers yet. Companies like Engenium ( www.engenium.com), Attenex ( www.attenex.com) and Dolphin Search ( www.dolphinsearch.com) offer data mining technology through which the computer literally attempts to review and make sense of your documents. Combined with robust database technology and, probably, digital Web repositories, these approaches make sense. Ultimately, the hope is that smart computers can take the place of smart associates and legal assistants to find the proverbial needle in the haystack.
I don't know where it all leads, but I do know that litigators are in for some interesting times as we move farther into the digital era. Electronic courtrooms, e-filing, wireless Internet access, extranets and huge document repositories will become the norm. All must be mastered—just as we still have to master case law and rules of procedure.
LPM can help provide the resources you'll need to master this new age. For starters, check out Section publications such as the recently released Lawyer's Guide to Extranets and Persuasive Computer Presentations. And make plans for next year's ABA TECHSHOW®. We covered all of these issues during this year's TECHSHOW sessions and I can promise even more coverage in 2004. You can't afford to miss it if you want to continue litigating in the AD.
John C. Tredennick, Jr. ( firstname.lastname@example.org) is a partner at Holland & Hart and CEO of CaseShare Systems, an Internet company building paperless systems for the legal and business communities.