Electronic data involved in multidistrict litigation (MDL) and mass actions is exploding in both volume and diversity, with no end in sight. Analysts project that the volumes of data being produced will double every two years, which is consistent with the growing volumes of pre-trial data hosted in the Nextpoint litigation platform.
Add to this a technology landscape that is accelerating the pace of change. Changes in technology that used to take decades now happen within years. For example, Apple introduced the iPhone in 2007 and launched the iPad just a few years later in 2010.
The increasing technical challenges associated with managing very large volume data sets have forced senior litigation partners to address technical challenges once left to paralegal, IT and support staff.
Senior litigators are now faced with a challenge that can befuddle many CIOs and CTOs – the evaluation and selection of technology platforms within the context of highly-complex litigation. Because multidistrict litigation of this sort can take decades to resolve, decisions made today will reverberate throughout the lifetime of the litigation.
The importance of planning for the future.
While any multidistrict litigation is coming together, cases are being filed and transferred, the court’s liaison counsel are selected, and individual parties are evaluating their litigation posture. The question of litigation technology to support the matter may seems like a distant concern.
However, in light of the accelerated evolution of technology, the appropriate time horizon for determining these issues is hard to pin down. Do parties want to plan for the next three months, the next five years, or potentially even a decade? Many Nextpoint users are currently managing multidistrict matters that were initially filed in the late 1990s.
Senior litigators are now faced with a challenge that can befuddle many CIO’s and CTO’s – the evaluation and selection of technology platforms within the context of highly-complex litigation.
MDLs have an extended shelf life, with in-house and outside counsel frequently changing over the years. An MDL handled “cradle to grave” by the same in-house lawyers and outside law firms would be a decided outlier.
Knowing this, it’s smart to begin the technology planning phase early. A high-level strategy discussion in the earliest stages of an MDL will provide substantial benefits. Ignoring the conversation can lead to complications and failures many years down the line.
Start the dialogue and avoid stagnation.
In the initial stages of litigation, there’s generally a lack of consensus between outside counsels and end-clients about the expected ROI of a dedicated technology infrastructure. The most common reason for this lack of consensus is that the early discussion often includes only non-technical staff. These folks rarely want to be a member of the vanguard when it comes to technology decisions for the collective whole.
But the financial and political reality of MDLs is that a reluctance to move forward is often sufficient to prevent ANY progress from being made. If litigators want to substantially improve the overall technology strategy on a case, this is perhaps the single most significant issue they can address.
Advocating strongly for development and implementation of a cohesive technical strategy – regardless of what it ends up looking like – ensures that issues are vetted prior to any substantial investments and workflow development. At a minimum, a consensus must be reached regarding the exposure points going forward in the litigation.
One size does not fit all.
Senior counsel must note that building and maintaining the technical infrastructure required to fully support an MDL is beyond the internal capabilities of most law firms or corporations. “The way we’ve always done it” isn’t an appropriate solution for managing the data volume in an MDL.
Why? Because MDLs present highly specialized sets of requirements. There is no turn-key infrastructure robust enough for the unique needs of each MDL. No individual party to the MDL would be willing to fund it, even if such an infrastructure did exist. These are by nature highly political, complex litigations spread across multiple jurisdictions.
Additionally, the lifecycle of the MDL is distinct and separate from the capital investments of the law firm or the corporation. Attempting to retrofit these investments into the MDL is impractical at best.
To avoid these pitfalls, it’s incumbent upon senior counsel to step in and ensure there is a defined technology strategy in place in the early stages of any multidistrict litigation. The old adage rings true: Failure to plan is planning to fail.
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