Finding A Needle In A Paperstack

by Eric D. Schatz, LEED AP

Using an electronic document database to manage and review discovery productions not only lays the foundation for successful litigation and expert testimony, it can also prove to be a critical cost effective tool.

Litigation support databases can be used for any size document production, although smaller disputes or those that are likely to settle in the immediate future may not warrant the additional startup effort and cost in setting up a database. However, on medium, large and mega projects, litigation support databases have become essential due to the sheer volume of documents involved. ARCADIS has relied on these databases to assist with the document review on litigations involving 10,000 to 100,000 to well over 1,000,000 documents.

So Many Documents, So Little Time

The number of traditional project documents on construction projects, such as drawings, daily reports, meeting minutes, RFIs, change orders, and submittals have remained relatively constant over the years. On projects with proper document controls, the project records are filed in binders, folders and cabinets that are accessible and easy to retrieve.

Many large projects, or those with large public owners, use online project management databases, such as Contract Manager or Prolog, to electronically host the project documents for the use of all involved parties (construction managers, contractors, designers, owners), eliminating a significant amount of paper waste.  If a project does end up in litigation, having the project records electronically and in a central location makes it easy for legal and expert review and analysis. An expert can immediately download and analyze data for manpower and as-built information from a project management database that stores daily report information, which saves hours of time intensive document review and data entry.

Although the amount of traditional project documentation has remained relatively unchanged from recent years, it should come as no surprise that companies today possess massive amounts of electronically stored information (ESI).  The real culprit is email and the inherent ease involved in clicking the "send" button on one's computer…or  Blackberry…or iPhone. We've all been in the situation where we've sent an email and copied multiple people.  How easy is it for the recipients to respond and click "Reply to All" (with related and unrelated issues)? If the email was initially sent to six other individuals, that reply could appear seven times in the document production (you, plus the six recipients), as will every subsequent reply to the email chain.

While the hard copy paper "universe" has remained constant, the ESI universe continues to expand like a black hole, seemingly absorbing everything in its vicinity. Court systems continue to adopt procedures and requirements to keep up, specifying what electronic files and formats parties must produce in discovery. On the other hand, no one really wants all of the ESI that exists (e.g., a copy of everyone's hard drive who worked on the project); they just want the relevant files. ESI discovery, however, is another topic for another time. The focus of this article is to provide information and suggestions on solid document management practice, specifically with the use of litigation support database software.

Litigation Support Databases

Over the past 10 or more years, many law firms have adopted litigation support databases to manage the massive volume of documents produced in discovery on construction lawsuits. CT Summation, Concordance and iConect are three of the more commonly used software programs, however there are many other programs available. These programs allow the user to view a document image on one half of the screen, and a database with information and comment fields about the corresponding document on the other half of the screen. Common fields include bates number, date, author, recipient, title, document type, issue and summary, but there are many other standard and custom fields.

Scanning and reproduction vendors that provide services to law firms are familiar with litigation support databases and can provide files in various formats. The simplest database available will contain only bates numbers that corresponds to each scanned image. It is up to the reviewer to fill in the other fields.

For additional costs (on a per document or page basis), reproduction or other specialty vendors will code the objective fields that do not require specific knowledge of the facts or construction industries, such as the document date.  It is often helpful to code the basic fields (date, author, recipient, title, document type, folder name); however extensive coding beyond this is generally less useful and adds unnecessary costs.  Some vendors will perform coding manually, while others use an automated computer process.  Auto-coding is significantly faster and less expensive, but depends on the quality of the proprietary software and the document scanning. Advancements in recent years have resulted in improved auto-coding reliability.

Electronic documents in their native format can be imported into the databases relatively easily, along with their metadata. Metadata refers to the specifics about the data files themselves, including their date, author, file name, file location, type of document, etc.  Including metadata content is particularly useful when importing information from emails as it provides key objective coding information.

Advantages to Document Databases

It would be naive to think that document production and review has not changed at all from the turn of the century with antiquated "boxes of paper." While these "boxes of paper" are still used today, in many cases they have been replaced with a disc of electronic files.  It is certainly easier, quicker and cheaper to send a disc rather than boxes of paper to the involved parties, but opening 10,000 separate files is not an efficient way to review massive amounts of documents. Enter the electronic document database.

Search Document Text
Perhaps the biggest advantage of using a document database is the user's ability to search the text of all the documents for specific keywords and phrases. Native format electronic documents (e.g. emails) already contain the content in text form, and an Optical Character Recognition (OCR) process reproduces and stores the text of scanned hardcopy documents.

Once attorneys and consultants have an understanding of the key issues of any given case, they can perform accurate and refined searches to find relevant documents. As new or additional issues are inevitably identified, the text search capability provides a much better alternative to going back and combing through all the boxes or individual files again.

Combining the search feature with other coding information, specifically dates, allows the user to review selected documents in an efficient, chronological manner. The reviewer further refines the search results and codes documents with issues and summaries of its contents. At this point, issue files with complete chronology summaries and corresponding key documents can easily be printed and placed in a binder for easy reference.

For suggestions on the information gathering process related to claims and disputes not yet in litigation, refer to Christi Fu's article, "The Importance of Fact-finding", featured in this issue of the newsletter.

Quickly Review Documents
It's easy to pick up a newspaper, flip through the pages, and gather a general sense of what's happening in the world around you. Litigation support databases also allow users to "flip through" the documents and within seconds have a general idea of their content. An electronic document database allows you to quickly scroll through documents, much like paper, simply by tapping the down arrow to go to the next record.

Without an electronic database, even if the files on a disc are all appropriately named, you still need to open each file to look at its contents - a time consuming process with 10,000 documents. Generally, parties maintain a standard, logical filing system to organize their hardcopy records. The document production and review process should take advantage of this!  Users can get the best of both the paper and electronic worlds by essentially creating a virtual file cabinet in the electronic database. For example, vendors can scan the folder tabs or labels and provide this information in a "folder name" field in the database. Additionally, it's helpful when boxes or cabinets are scanned consecutively.  If all of the payment requisitions are grouped together in the database, it is easier to review all at once than if they are scattered throughout. Maintaining the project's filing system saves time and money from unnecessarily reinventing the wheel.

Code and Quickly Retrieve Documents
When a user reviews a document, he can assign issues and provide a summary of the document's key contents.  This information is linked to the document image in the database and is available to other users. Anyone can then sort for documents relating to a certain issue and understand the key points at a glance, without having to read every document.

The coded information of date, author and recipient make retrieval of specific documents quick and painless.  If important project correspondence references "Mr. Johnson's April 29, 2011 letter," a simple electronic search will yield the target document. Without the online database in place, it could take hours for someone to hunt down this one letter. Using the database to filter by date and author will take seconds.

Share Documents Easily
The litigation support databases allow attorneys to easily share documents and information with consultants and within their firms. The database software, information and images are generally stored and shared in one of three ways:

1.  The law firm and consulting firm each have a version of the database on their servers.

PRO:  Easier to maintain privileged information

CON:  Attorneys and consultants do not have the instant benefit of accessing each other's coding and comments

2.  The law firm hosts the database on its own server and gives consultants access through a VPN (Virtual Private Network) connection. Attorneys can restrict privileged fields and notes.

PRO:  Attorneys and consultants receive instant benefit of each other's coding and comments

CON:  Law firm network security sometimes prevents this option

3.  Lawyers and consultants access the database via a web-based version of the software, hosted by a third party vendor.

PRO:  Attorneys and consultants receive instant benefit of each other's coding and comments; accessible from any computer and any location; sometimes necessary for larger legal organizations to control documents

CON:  Slower to load and access images; interface is not as user friendly as local versions

Physical Size
The computer sitting on your desk already takes up much less space than an extra 40 or 50 boxes of paper in your office. And how much easier is it to take a laptop home or on the road, than to take even one of those 40 or 50 boxes?

Measure Twice, Cut Once

For firms that invest in litigation support databases, it's important that they develop a protocol for the collection, the scanning and coding of hardcopy documents.  They must also take painstaking care to guarantee that the protocol is followed. While it involves more effort and planning, spending the time early during document production can save clients significant time and money down the line.  It often makes sense for attorneys to involve consultants and key individuals from the party they represent early in the document production process to assist in identifying which documents should even be included in the database in the first place.

After the appropriate documents have been selected to be included in the litigation support database, vendors should be given clear, explicit directions to ensure that the scanning and reprographics follow protocol.

Consider the following key recommendations:

• Always request that hardcopy documents be converted to text with OCR.
• Strongly consider coding for the document date field. Objective coding for other key fields (author, recipient, document type and document title) is also recommended.
• Request that the vendor scan folder labels and identify the folder contents in a field in the database.

Although the up-front cost to properly set up a litigation support database is higher than relying on paper or CDs of electronic files, it will ultimately result in substantial savings throughout the course of the litigation. For smaller cases, or those that expect a quick settlement, the database may not be worth the effort. Otherwise, the payback presents itself in one of two ways: (a) less time spent reviewing documents directly results in lower legal and consulting costs, and (b) on very large litigations, the amount of time spent reviewing documents may be dependent upon the available time, not necessarily the number of documents produced. In this case, a more efficient document review will yield better results and a more thorough legal or expert analysis.

As the name implies, the purpose of these databases is to support litigation efforts. A well thought-out document management plan, which takes advantage of today's technologies, allows attorneys and experts to focus more effectively on the end results.

For more information, please contact the author, Eric Schatz, at 860.704.6100.

ABOUT THE AUTHOR
Eric Schatz, LEED AP is a Senior Claims Analyst for ARCADIS. He has worked as a Claims Analyst, Construction Manager and Surety Consultant on a wide variety of projects, including municipal, healthcare, hospitality, educational, commercial, transportation and industrial facilities. His experience includes both analyzing and preparing claims regarding construction delays, disruption, change orders, deficient work and design liability. Given the nature and volume of today's project record keeping, Mr. Schatz's proficiency in technology and electronic document management is an indispensable asset on large claims and litigations. Mr. Schatz is a LEED Accredited Professional and a Certified Fraud Examiner.