Law360 (June 3, 2020, 5:56 PM EDT) --
|Kyle Richard Olson|
This transformation has included seemingly all aspects of legal practice, including the deposition, a critical component of the U.S. system of civil litigation, along with witness interviews, conferences, hearings, mediations, signings and filings, among many others. In all scenarios, counsel were presented with a host of novel logistical challenges, causing tools and technologies to be tested, discarded, combined and used to accomplish the very same tasks that were previously only done in person, with hard copies, and at great expense.
The endgame to post-COVID-19 work is yet to be seen, but one key to the survival of any lawyer, especially a civil litigator, will be how to represent clients in the U.S. legal system remotely, without paper, using existing document management technology.
What Challenges Are Presented by Remote Document Management?
As shelter-in-place orders rolled out throughout the U.S. in March, law firms shifted to various work-from-home models and a fully virtual environment. For most counsel and their staff, this was the first instance of a truly paperless practice.
Not only must documents be digitized to reduce paper files, digitization is essential for the work-from-home model to function. Moreover, common tools to share documents — such as email or even secure file transfer applications — quickly became problematic, if not insufficient, to support the work-from-home practice.
Many other challenges and considerations also arise in this virtual context that do not exist in the same way in the in-person world. For example, work product and strategy concerns are magnified for a remote deposition in the practice of civil litigation. Threshold considerations include whether to go forward with a remote deposition at all, which in turn includes the importance of the witness to the case, difficulty in coordinating the logistics, how contentious the case is, the trustworthiness (or lack thereof) of opposing counsel, any risks of witness coaching, and broader witness cooperation, among other factors.
But even when there is some form of a return to the office, counsel will need to consider the strategic impact of taking a virtual deposition, if for no other reason other than to assess whether the witness warrants the time and expense of taking it in person. There is also no doubt that budgeting and case and matter management, including scheduling orders filed with the court, will now encompass the question of how and when (not if) to deploy remote practice capabilities. Clients may, in fact, become more selective about whether an in-person interview, meeting, signing or deposition is worth the expense, especially when it involves attorney travel, if there is a viable remote alternative.
The most significant challenge in the remote context is the use and handling of documents. This includes how to simultaneously present a document in real time to participants in different locations, each remotely attending the deposition, meeting, interview, signing (including how to electronically sign), or other event. In a deposition, it also includes how to introduce the document to the court reporter and witness, and how to have it stamped as an exhibit after it is introduced.
What Technology Solutions Are Available?
The key mechanical aspect of virtual document management requires technical adaptation to operate in a remote environment. The best technological solution or platform may change depending on the deposition or other intended use (such as meetings, interviews or hearings). The best offerings currently on the market address document management as an independent function, separate from video or other data source.
The applications can then be run simultaneously with multiple devices or in a split-screen view. Much of virtual practice relies on multiparty video streaming platforms. Zoom is fast becoming ubiquitous in this area, so much so that many vendors are not bothering to create their own video streaming technology.
How, then, in this context can counsel manage the necessary documents? Remote practice prevents trucking in banker's boxes of documents, handing them across the table, etc.
Although hard-copy documents can be shipped ahead of time, this also requires that counsel prepare significantly in advance and makes it difficult to make any additions or changes close in time to the meeting, deposition or hearing. This can also cause the inadvertent but unavoidable disclosure of work product, just by virtue of the documents distributed. Sending hard copies also, of course, precludes the use of video or native files.
Thankfully, advances in remote technology have improved the way in which documents can be shared and exchanged and will give lawyers the tools, even if imperfectly, to adapt to the quickly transformed remote world. Now, counsel are not required to send documents in advance, but can distribute and share documents in real-time. There are several ways to handle the electronic exchange of documents and materials. The best method depends on the circumstances of the case.
Zoom and other video streaming platforms have a share-screen function. This allows users to share their screen, a portion of the screen, or a specific program. In small cases or deals, where there are fewer documents or where the document is a video or other native file, this is a good method to share the document. But this method does not address the issue of delivery (since the other parties are only able to view and do not get a copy of whatever is shared) and may not be optimal for document-intensive deals or more complex cases.
Perhaps the best solution for deals or cases (or other work) with voluminous documents or a sequence of meetings or depositions, etc., is to use a platform designed for this precise purpose. There are several on the market, but the idea is that this platform runs alongside the video.
In a deposition scenario, for example, taking counsel, opposing counsel, and the witness or other participants will each have a separate login. Lead counsel can drag and drop their documents into a deal or case library. During the meeting or deposition, counsel can mark up, stamp and distribute documents that have been loaded to the platform in real time.
The documents then feed into separate libraries containing only the distributed documents, which opposing counsel or the witness can independently access and review. These platforms allow quick and easy on-the-fly document loading (even during a meeting, mediation or deposition).
These applications also allow access to any document introduced in the deal or case at another deposition or meeting if the platform was previously used. This becomes a significant advantage over the traditional exchange of hard-copy documents, particularly in matters with voluminous documents and extending over many months or years.
Co-counsel, or possibly a paralegal or technician, can provide document support during the deposition or meeting and, through the platform, run the document function. (In many instances, co-counsel, e.g., a junior associate, are the strategically better choice to handle this role since they may have a deeper familiarity with the documents; but this can also be more expensive than having a nonlawyer do it.)
In this way, the document applications best simulate the distribution and sharing of documents during in-person meetings and depositions. The downsides of these platforms — which are cloud-based systems — include a limitation on the file type (no native files) and file size (approximately 25-40 MB).
What Are the Best Practices for Remote Document Management?
There are many moving parts in remote document management. It is important to become familiar with your preferred technological solution. Plan for things to go wrong and how to respond in each instance. By identifying potential issues ahead of time, many can be avoided, mitigated or prepared for by way of contingency plans that can be set up in the event there is a platform failure.
In addition, there a number of best practices for remote document management:
- Confirm that the parties have the necessary devices. Test internet access, audio, and video feeds and document sharing in advance, ideally at least two days before the deposition, hearing, closing, meeting, etc.
- Know the capabilities and limitations of your virtual platforms and how to use them.
- Consider conducting, in advance, a simulation, e.g., a mock virtual deposition, hearing or meeting, using the technology.
- Review any applicable local law.
- Obtain applicable stipulations from all counsel and parties. For example, with respect to a remote deposition, counsel from both sides ideally will stipulate that remote swearing in of the witness will suffice (to the extent that this is not already provided for by applicable rule).
- Confirm the nonwaiver of privilege and work product arising from any inadvertent sharing of privileged or work-product documents or communications.
- Confirm nonretention of any confidential documents by those not subject to a protective order.
- Determine where all of the attendees will be located, and share contact information, including telephone numbers and email addresses, for each location.
- Particularly where the event, e.g., a deposition, is subject to a transcribed recording, be very descriptive and identify documents specifically and, where applicable, by Bates number.
Mastering the tools and applications for remote document management takes time. Counsel are tasked with becoming proficient with not just one but multiple platforms that must be integrated for success. Preparation, testing and live-fire practice is key.
Will Virtual Practice Become the New Normal?
In-person practice will resume, in some fashion, sooner or later. By then, counsel, clients and courtrooms will have taken serious steps to adapt to the new remote environment. Indeed, virtual connection, once a worst-case alternative to being in-person, may become necessary, if not the norm, for the continued practice of law in a post-COVID-19 landscape.
Certainly, virtual document management has taken a new turn, with new laws and procedural rules emerging that permit or promote remote meetings, signings, hearings, etc. With the potential return of gridlocked streets and highways that will follow the return to the office, remote document management and the virtual practice may remain an appealing alternative to the traditional practice model. So, too, will lawyers of many stripes, including firms, be looking for a return on investment, which many surely made in developing and rolling out new technologies and platforms.
A hybrid world of returned in-person work, coupled with expanded remote practice — a world that appears to be on the horizon — is poised to provide the opportunity for the new technologies and platforms to prove their mettle.
Aaron T. Goodman is of counsel, and Nick Kennedy and Kyle Richard Olson are partners, at Baker McKenzie.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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