Discovery disputes have always been a staple of litigation. And now that electronic discovery has pretty much supplanted the old-fashioned discovery of paper documents, the disputes have only become more complicated and more bitter. As a result, our firm is increasingly called upon to create courtroom presentations for discovery dispute hearings.
In the past ten years, e-discovery consulting firms have come to dominate the litigation support field, providing their expertise in a rapidly changing and highly technical field. That is not the only new development in this field.
First, many law firms that are representing clients in document-heavy pieces of litigation have begun to hire “discovery counsel,” law firms that specialize in discovery alone and don’t promote their expertise in other areas of law. One such firm says on its website that it devotes “all of our resources to the successful execution of document collections, reviews, and productions.”
Second, many traditional law firms are setting up dedicated practice groups to address e-discovery and records management issues. These lawyers’ primary job is to help the firm’s general litigators in dealing with e-discovery issues that may come up.
Finally, as an excellent article by a K&L Gates partner points out, “some companies have hired National e-Discovery Counsel to handle e-discovery issues in all of their litigation matters nationally and/or internationally.”
As the article points out, these companies have several advantages: They have one firm that is fully up to speed on their information systems; they have developed uniform practices and procedures for discovery; and they can achieve some cost savings by reusing their databases.
Whoever the players are in a particular case, there’s little doubt that the advent of e-discovery has resulted in more discovery battles than there ever used to be.
That is where a courtroom presentation consultant can come in. Sometimes the consultant’s role is to demonstrate what documents were missing and why sanctions are warranted. Sometimes the graphics illustrate, to the contrary, that the matter in dispute is not large enough to warrant sanctions.
Dan Regard, leading testifying e-discovery expert and Managing Director of iDiscovery Solutions notes, "we are often brought in by clients not only to understand a complex situation, but to help explain it to a trier of fact. I prefer when we work with the courtroom presentation artists, because at the end of the day our job is easier and the message is clearer."
The three courtroom presentation exhibits below were all used in pre-trial hearings after a discovery dispute had erupted. Each of them uses a familiar analogy to show that only a small number of pages or emails are at issue.
In the first courtroom presentation graphic (below), we showed that the number of relevant emails is equivalent to only 3.6 pages from the Encyclopedia Britannica.
In the second courtroom presentation graphic (below), we used tall stacks of paper to indicate that out of 8,000 pages, there were only 13 unique emails and attachments.
In the third courtroom presentation trial graphic (below), we created a schematic of a pro football stadium to show that if compared with the whole universe of documents, the ones that relate to Morgan Stanley was only the equivalent of 114 spectators in the whole stadium.
Courtroom presentations are a valuable weapon in discovery hearings. When done correctly, the right trial graphics can help a litigator prevail in these ever more acrimonious disputes.