• Going Supersonic with Litigation Extranets: How Not to Crash and Burn
  • September 23, 2003 | Author: W. Scott O'Connell
  • Law Firm: Nixon Peabody LLP - Manchester Office
  • Introduction

    Defending multijurisdiction litigation presents unique, difficult, and costly challenges for any corporation's general counsel and its outside legal team. The development and implementation of coordinated case management and an effective strategy in multiple forums against multiple adversaries is not easy. Challenges include, among others, maintaining consistent legal positions in different matters, harmonizing discovery responses, coordinating fact gathering and analysis, organizing fact witness identification and preparation, directing expert identification and preparation, and ensuring that the entire team is well informed. Depending on the complexities of the case -- and the proximity of the various related matters -- these "challenges" often require dedicating legions of support personnel in multiple locations and assisting the time-intensive and time-sensitive task of keeping the constantly growing mass of information organized, accessible, and focused.

    The costs to clients for managing these many "challenges" can be considerable, and are, for the most part, unavoidable. Conventional wisdom has held that maximizing coordination, efficiency, and speed among matters while minimizing litigation costs are mutually exclusive propositions -- you can't do one without compromising the other. Sacrifices are inevitable if cost containment is a driving force. Conventional wisdom, however, fails to consider the ways in which the Internet has revolutionized techniques for storing, retrieving, and processing information. Today, the Internet enables both inside and outside counsel to operate in the same "virtual" case room, working with the same materials regardless of their actual physical location.

    Several years ago, as national coordinating counsel for many different types of companies (e.g., financial institutions, product manufactures, service providers) enmeshed in state and federal class action litigation around the country, we turned to the Internet to manage our way through the "challenges" referenced above. The rapid growth of our firm -- which now includes fourteen offices nationally -- required that we devise means and methods of having our own attorneys operate collaboratively for the delivery of our services. We took the "best practices" developed from our internal "intranet" experience and transferred them to an "extranet" platform accessible to clients, regional and local counsel, and, in certain circumstances, experts and adversaries.

    From simple on-line docket postings to comprehensive client document repositories, technical and scientific libraries, expert databases, and electronic production sets, we have designed, maintained, and managed many different types of extranets. Our development effort continues to be a work in progress as we identify new client needs, define additional functionality, and refine existing capabilities. We have learned, however, through our battles in the cyberspace trenches, some best practices and guiding principles, which are summarized below.

    The Extranet Basics

    What is an extranet?

    It is a secure, private intranet site accessible over the Internet to password-permitted users. In the litigation setting, it is an intranet in which access is limited to, inter alia, the client, coordinating counsel, local counsel, advisors, and consultants.

    What kinds of case information can an extranet contain?

    The tools available in most extranet products enable the creation of a "virtual office" accessible through the Internet from anywhere. The essential functions of a useful litigation support extranet include:

    • an online workplace for the client and counsel to collaborate on all materials involved in the case
    • a repository for all pleadings, correspondence, ideas, and work product
    • a central calendar and docket
    • a searchable library of relevant retrievable documents
    • a database of relevant facts searchable by date, issue, or person
    • information about opposing parties, counsel, and court
    • Internet research tools
    • a private area for client and counsel
    • limited and controlled access to coparties
    • limited and controlled access to experts
    • limited and controlled access to opposing parties and counsel

    How can an extranet be used to manage the litigation?

    In addition to the materials identified above, an extranet can contain management tools accessible only to the client for use in maintaining control of the case. These tools include:

    • time and billing records for all timekeepers
    • client reports on case activity
    • risk analysis updated on a set schedule
    • budgets
    • strategy

    What are the principal benefits from using an extranet?

    Coordination between counsel in different locations is simplified greatly. Collaboration is direct and immediate. The administrative burden of maintaining multiple document/pleading/correspondence sets disappears. All efforts are directed on building a single knowledge bank contained at the extranet site rather than in separate and disparate silos. As a result, the legal team has a more comprehensive collection of materials upon which to draw to ensure a focused and targeted litigation strategy. Collaboration at the site facilitates the efficient sharing of relevant information. The technology provides a means for easy retrieval of necessary information, which further reduces administrative time and enhances productivity. Finally, if properly managed and executed, this single knowledge base should become a means by which efficiency is maximized and costs contained. Duplication of effort is minimized.

    Extranet Best Practices: The Lessons We Have Learned

    • A good start to the extranet is critical
      For many clients and counsel, the migration from paper to cyberspace is not easy. Confidence in the stability and functionality of an extranet is critical for a successful transition. Accordingly, take the time necessary to debug your system before an extranet is rolled out; otherwise, team members who lack confidence in the technology will revert to paper, thereby defeating the economies and efficiencies that come with an extranet.

    • K.I.S.S.(Keep It Simple, Stupid)
      Smart, well-intentioned computer jocks (either attorneys or support personnel) sometimes get lost in the capabilities of the technology. The resulting extranet sometimes becomes a technological marvel that will never get used by anyone on the litigation team. When in doubt, simple is usually better than complex.

    • Keep a familiar interface for the extranet
      To ease the transition from paper, it is helpful if the extranet employs a user interface that mirrors other regularly used programs. Because most of the business world has become increasingly reliant on e-mail, designing the extranet interface to "look and feel" like an e-mail software program is a winning strategy.

    • Keep the extranet nimble and easy to navigate
      Make sure that your extranet is as easy to navigate as your favorite Web site. Functions on the site should be intuitive. Security protocols should not interfere with navigation once on the site. Also, it is important that updating information on the site be made as easy as possible for all those with access.

    • Power your extranet with the correct technology
      Avoid the temptation to waste time by experimenting with an extranet that employs technology that is not properly suited to the task. You will disappoint your client, disillusion your team, and minimize the substantial benefits that can be realized from a well-designed and properly deployed site.

    • Ensure that your extranet is scalable for rapid growth
      Extranets provide benefits in both small and large cases. Unfortunately, the technology necessary to power small cases differs from that needed for large cases. Make sure that when you chose the supporting technology, you are satisfied that it will be scalable to meet the types of cases you expect to handle.

    • Provide correct levels of security
      The power of what you can provide via an extranet turns largely on the type of security you are able to provide. Public materials, such as an electronic docket of pleadings, require virtually no security. Work product, risk analysis, and strategy materials, however, require the best security reasonably available. This is not an area in which to cut corners. Providing secure identification, intrusion protection, virus monitoring, and related services is very important. For this reason, we no longer host sites on our firm's servers but have contracted with a third party that can provide "state of the art" security monitoring in a cost effective way.

    • Provide powerful and useful content on the extranet
      The best way to drive traffic to the extranet site is to ensure that it is populated with useful information that is readily accessible. To the extent that team members can avoid using the site through other means, it dilutes the benefit of the site. For example, if team members rely on e-mail to exchange thoughts on a given issue, you need to create a strategy for getting those thoughts to the extranet so the entire team is exposed to these ideas. Facilitating and obtaining benefits through brainstorming is a central client benefit. Changing old habits and getting participants to post messages at the site rather than simply e-mailing the same content requires discipline and direct attention.

    • Develop a plan to sustain and maintain the extranet before it is employed
      In addition to having useful content at its inception, it is important that the team devise the means by which the information will be updated. One way to ensure that members will not use the site is if they find themselves retrieving inaccurate or unreliable information.

    • Invest in appropriate training
      Even though the strategies detailed above are to make the functioning of the site as familiar and easy to use as possible, don't assume that team members will know how to use it intuitively. Taking the time to train individuals on the correct operation of the site helps get members invested in the content and the knowledge management goals. Get participants invested immediately by having them put information into the site. Keep efforts to "work around" the technology to a minimum.

    • Obtain support from leadership
      In order for the migration from paper to cyberspace to be successful, it is important that you create a culture that rewards success in this endeavor and frowns upon old habits that perpetuate less efficient and ultimately less beneficial strategies. There is no substitute for a clear and unequivocal endorsement from management that the demands of our clients and the exigencies of the marketplace require that we embrace this technology, master it, and make it a seamless part of the services we provide. Likewise, clients need to be educated and, where appropriate, trained to recognize the benefits and participate in the team effort for all of the potential advantages to be realized.


    • Invest in appropriate technical support
      In order to remove barriers to the successful implementation of this technology, it is critical that you have appropriate technical support from the beginning that is also accessible thereafter to troubleshoot inevitable problems. Where such support is unavailable, careful consideration should be given to outsourcing the site to a provider with the necessary technical team.

    • Have a backup plan to fix problems encountered with the extranet
      Confronting problems on the site is not an excuse for the technically challenged to rely on a "shadow" paper file. Rather, it is a reminder to make sure that the extranet you create is regularly backed up. Because extranets often sit on isolated servers on the outside of the firm's "firewall," care must be taken if there is no protocol to back up this information. Make sure that your site is backed up at least daily.

    • Don't ignore the cultural issues that impede the use of the extranet
      Often the benefits offered by a well-designed and well-maintained extranet site are diluted or sometimes destroyed because some team members have enormous difficulty working on anything other than paper. Changing paper habits can be hard and sometimes simply not possible. Confronting these habits at the outset is important in order to minimize the disruption to the overall project. Create strategies for getting work product from the less willing on the site where it can be used by everyone. Over time, resistance will subside, respect for the medium will grow, and realization of the expected benefits will enable discipline. There was a time not long ago when many well-respected and thoughtful attorneys predicted that voice-mail would never survive. The basis for the prediction was that clients would not tolerate talking to a machine rather than to a person.

    • Ensure attorney involvement in the design and population of the site
      Because the benefits at the extranet site will largely come from participating attorneys, it is important to involve them in the design of the site. Making sure that the site contains information that counsel will find useful as the case evolves from discovery through trial preparation and, finally, trial and appeal, requires team thinking. It ensures that investment in the site will contribute to a successful collaboration and, hopefully, a result that meets expectations.

    Conclusion

    Client demands for efficiency and the continued expansion of Internet capabilities make extranet design, development, and use for litigation support a fluid topic. If you would like more information about our use of and experience with extranets to manage multijurisdiction class action litigation, please feel free to contact us.