When coordinating multi–district litigation, many firms like to think that they can simply call on their existing in-house resources, including litigation support staff and paralegals, to take over the technology strategy. In some instances, this approach may be sufficient, but only at the early stages of the case. In our experience, this strategy never works over the life of any kind of protracted litigation.
Given the complications of managing MDL in the data-rich world we live in, no firm or collection of firms can hope to manage the entire process efficiently. Until discovery begins in earnest, existing document management systems and small scale legacy databases can handle the legal research and motion practice necessary to complete this procedural phase of the case. However, this work will need to be repurposed, imported, and re-reviewed into a full-featured system as the case goes forward.
Discovery Destroys the Best-Laid Plans
A comprehensive technology strategy becomes essential once a case management order is in place, collections and preservation procedures are being run, key custodians identified, and dates for interrogatories, responses, and data productions are set. Limited discovery is often granted specifically for the purpose of determining the class, but this ultimately will have little real-world impact on the decision which technical platform to use in discovery. Eventually, regardless of the disposition of the class, each of the individual cases comprising the MDL will require discovery.
28 USC § 1407 sets up the MDL panel in situations where the court is overwhelmed by cases in which there is related discovery. The exact purpose of an MDL is to streamline procedures by consolidating related proceedings into a single matter. This presents tremendous opportunities for streamlining efficiency, protecting privilege, improving the quality of lawyering, and reducing overall costs for defending cases by sharing a discovery and trial practice infrastructure. But if law firms are going to keep their processes separate, what is the point of an MDL?
Cloud technology to the rescue
Answering these challenges with current Internet and cloud-based technologies is the only answer. The volume of data expansion is directly as the result of the Internet. For this reason, an answer rooted in Internet technologies is the only feasible technical answer going forward in a cost-effective, systematic method. Throwing additional funds at outdated, non-Internet based legacy technology will simply not solve the problem – and most litigators we work with have often already learned this lesson the hard way.
A cloud-based litigation infrastructure solves the specific challenges of an MDL. These include:
- No upfront expenditure or commitment.
- No software conflicts or incompatibility.
- Every user works off the same version of the software in the same database.
- Storage and computing power is centralized and controlled.
- Controls access and maintains uniform security standards.
- Supports massively powerful search (including machine assisted privilege protection and relevance detection)
- Instant electronic data transfer between parties.
- Supports iPads, Apple, Android, or any emerging platform.
- Supports multiple, geographically disparate, concurrent trials.
Most importantly, the cloud supports collaboration. Underlying all of the technical evaluation is a simple question – which platform helps us work together most efficiently. Because there are so many actors involved in MDL’s, in different jurisdictions, with differing internal technology environments, it is critical that the solution selected encourages collaboration among co-counsel.
The ability to reduce duplicative efforts by multiple parties on cases with similar issues, facts, discovery, and relevant case law is precisely the reason that MDL’s were established. A measured, incremental approach that proactively deploys a technology infrastructure to enable this collaboration is entirely within reach given appropriate planning and the proper criteria for evaluation.
The justification for delay in implementing a coordinated technology strategy is the potential for a dispositive ruling. Many trial teams and in-house counsel try to ‘kick the can down the road’ in the hopes there will be no need for additional investment. It rarely happens, but the mere possibility is enough for in-house counsel to repurpose an existing solution or insist that law firms absorb these costs in the interim. It is a short-sighted approach that results in a substantially larger project when work inevitably must be done.