"Winning cases is about winning the race to the facts. In high-stakes cases, it gets late early," said Brendan Kenny, a Minneapolis-based trial lawyer at Blackwell Burke, during the recent 2014 NorCal eDiscovery and Information Governance Retreat. Mastering data visualization tools gives litigators an advantage during electronic data discovery, helping them quickly find key documents, he told the Sausalito, Calif., audience.
“Many legal hold tools are great at tracking who has received or responded to legal hold notices.” Kenny said. But it isn't just a matter of simply pushing a button and letting the machine do all the work, he continued. At a minimum, outside counsel must track what has been collected in order to make a gaps analysis, he argued. Many review platforms have data visualization capabilities that help a lawyer identify additional custodians or other sources of data that need to be reviewed.
But it's key to actually understand the process, Kenny insisted. Lawyers who face spoliation sanctions as their case develops often do not have, or are not able to use, tools that help them to track what happened with their client's collection and preservation of documents. They represent to their client, the court and opposing counsel how they thoughttheir client's systems worked, and what they thought has been done to preserve, collect and review documents. “But relying on second and thirdhand knowledge from people who often don't understand the discovery process (such as IT) leads to big mistakes and big sanctions,” Kenny stressed.
Technology can also help outside counsel's persuasive efforts at both Rule 26(f) conferences and Rule 16 hearings, he said. The data visualization features of e-discovery review tools enable lawyers to show, rather than just tell, opposing counsel and the court how reasonable, diligent and comprehensive their client's discovery efforts have been.
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