New Perspectives on Cloud Collaboration during Litigation & Arbitration

Clare Foley, VP Litigation Solutions, Opus 2 International

“Big data” strains the complex eDiscovery process; scores of eDiscovery providers and reviewers navigate troves of ESI and separate the wheat (relevant documents) from the chaff (irrelevant or duplicate data). This reduced data set is extracted and advances to the highly-strategic phases of litigation in which the senior attorneys prepare for depositions, develop arguments and proceed to trial or alternative dispute resolution.

Oddly enough, it’s rather common for some amount of “re-duplication of data” to occur at this stage. The core case team members may output multiple hardcopies of key documents to organize them for motions practice and depositions. Other team members save one-off copies of documents to jump drives or network folders.

These actions enable the team to circumvent review platforms and document databases that are intended for a more technical user profile and to dodge the complications arising from firewalls and co-counsel using different software. In this honorable attempt to focus on building their case as opposed to building another database, they unwittingly hinder collaboration and increase administrative overhead.

A 2014 study conducted by The “Paper Bundles in Litigation” published by The Lawyer Research Service in the UK estimates the costs associated with printing (and then maintaining) the evidence exceeds $150,000 for the average 20-day trial—a sum which excludes the incremental costs while preparing for trial and the indirect costs stemming from stifled collaboration.

“A central cloud workspace enables everyone to review the documents, benefit from the shared annotations and draw new conclusions that could influence the other matters”

New cloud-based litigation technology disrupts this paradigm. This new frontier steamrolls mainstream file transfer-type tools in favor of cloud-based forums that are equipped with litigation-specific tools. As attorneys become increasingly mobile, as litigation crosses borders and as clients are more value-driven, such secure cloud technologies will simplify and strengthen the most strategic phases of the case. Consider a recent six-week trial occurring simultaneously in two countries. Counsel spanned multiple firms and three countries, representing the same defendant. The cloud unites extended teams so they can share a common set of evidence and leverage the collective work-product before and during trial.

Already, private cloud-based “worldwide workspaces” have emerged to enable remote and office-bound legal teams to access the transcripts, the supporting documents, and best of all–the aggregated insight from fellow team members. Early adopters find they can quickly absorb comments from their team, maintain productivity while on the go, and meet intense deadlines.

Legal Insight Should Reside with the Evidence

Case teams may express brilliant ideas about a document’s merits within an email chain that is detached from the actual evidence being discussed. Those messages are easily lost in email archives and may exclude collaborators who would benefit from the insight.

The potential lost value over the lifetime of the matter is incalculable. The cloud model preserves that rich insight with the evidence itself–where team members can interact with it today or two years from now as trial draws near. This helps neutralize the effects of protracted matters and geo graphically-dispersed teams, and it prevents reinvention-of-the-wheel when the same content relates to multiple disputes. Perhaps a law firm is involved in five concurrent Asbestos filings that have documents in common.

In traditional practice, there could be five siloes of documents with varying legal analysis. Conversely, a central cloud workspace enables everyone to review the documents, benefit from the shared annotations and draw new conclusions that could influence the other matters.

Even the Lone Ranger Had a Partner

Cloud technology forms an environment in which even the most independent, isolated and mobile attorneys can easily build upon one another’s insights to advance the legal argument. In a cloud workspace, one team member’s casual observations may suddenly crystalize as another’s game-changing epiphany. Perhaps “Mary” discovers a new relationship between a deposition exhibit and a seemingly insignificant document and she shares those ideas within the workspace. While at a deposition in Tampa, deposing attorney, “Joe”, logs into the workspace and decides to adjust his questioning in light of her discovery.

Enabling multiple brilliant minds to participate in this “cloud-storming” incrementally shapes the legal argument to the ultimate benefit of the client. It also drives “just in time” information to ensure litigators gain optimal value from every deposition. It would be a shame for Joe to never learn of Mary’s discovery or to hear of it after his return from Tampa.

Anytime, Anywhere… Even in the Courtroom

International arbitration meccas like Singapore are embracing the cloud to streamline document exchanges among parties and arbitral panels. The parties can gradually curate their own corpus of documents and enable counsel and arbitrators to securely access the agreed arbitral record from anywhere in the world.

In recent years, the London courts have made great strides in leveraging the cloud to reduce the time in the courtroom and to facilitate paperless trials. This may foreshadow future developments in the US despite the slight differences in our litigation practices. Imagine a courtroom where the attorneys are logged in to the workspace in which they’ve been “cloud-storming” for months (or years)—where all of their collective insight, connections and the evidence co-exist. An exhibit is called and within seconds the clean copy appears on courtroom screens while the attorneys’ tablets display their copy. The live transcript is fed directly to the workspace for the benefit of all of its members – even if they aren’t in the courtroom. Team members iChat about the proceedings and direct one another to important facts in the workspace. Justice accelerates.

Technical Considerations

Every entity has its own view on how the cloud will or will not play into its IT strategy, but it is clear the cloud is pervading the practice of law. IT will always conduct due diligence of things like uptime, redundancy, encryption, surveillance and location (for jurisdictional purposes), but the upside of cloud-based litigation tools is undeniable—efficiency, quality representation and yes: security.

While walking along the Embarcadero recently, I spotted some papers caught by the breeze. Upon closer inspection I realized they were highly-sensitive legal documents. They must have come loose while in transit. While it’s an uncommon occurrence, and legal professionals clearly revere confidentiality, privilege and privacy, the repercussions are problematic just the same. (This is not fiction. It really happened.)

Considering the reality of evidence circulating in paper format, via email, or in countless storage drives, one could posit that the cloud yields greater security. The key documents, testimony and analysis are all locked down in a secure workspace that removes the temptation to re-duplicate. Vetted third-parties can host the data and liberate precious storage space that could otherwise be consumed by countless copies of content and terabytes of deposition video.

The Parallel Pursuit of Victory and Value

The cloud enables outside counsel to focus their time on the substantive legal work they prize and that contributes to more positive outcomes. Corporates can leverage the same cloud workspaces to become more involved in steering the legal strategy and monitoring the progression of matters. The combined result is their Holy Grail: value.