CASEYFRANK

DISCOVERY MADE EASIER BY COMPUTER

Introduction

The needs of the discovery process often command a disproportionate share of the time and effort devoted to litigation. Ironically, computerization may have only exacerbated this imbalance, by making it easier to reuse and add to previous interrogatories, and thus encouraging overly broad requests. Fortunately, there are also simple ways that computers can be used to make discovery easier to deal with. Some of them will lighten the load on secretaries and paralegals. Others will enable attorneys to better use the information received.

Get Depositions on Disk

Most court reporters will supply deposition transcripts on disk for a nominal fee (along with printed ones). Admittedly, merely having a disk is no substitute for mental familiarity with a deposition. Still, there may be times when you need to find specific information on short notice that you know is there, though you don't know precisely where. Naturally, the larger the transcript, the more impractical it is to search manually.

My firm was in a long trial during which there had been many days of depositions. Unexpectedly, during trial, a subsidiary issue arose that had been discussed during the depositions. Despite extensive preparation, we didn't know exactly where it appeared in the deposition transcripts. However, since all transcripts were loaded on a trial notebook computer, it took only minutes to find it.

Court reporters will give you a disk with the transcript in ASCII form. This is a universal text form. Both Wordperfect and Microsoft Word can open it, on either DOS or Macintosh computers. In Wordperfect 5.1 for DOS, you need to use the long display to view the ASCII file. Once opened, the ASCII file can be saved in the format native to your wordprocessor.

For those that want even more extensive analysis of electronic deposition transcripts, there are programs that will automatically index every word of an entire document. Some of these programs can search Wordperfect documents directly, while others require the transcript to be in ASCII format. DOS based programs include Summation Blaze, or Sonar which is available for the Macintosh. These programs are not limited to indexing depositions. They can provide indexing and text retrieval from any word processing document on your computer.

These programs search for words or phrases as instructed, and provide an index showing the page and line of each occurrence. They could exhaustively index every word, but this would include too many noise words, like "the" as well as "law" or "court." An essential feature allows the user to specify which noise words to exclude from the index. Another important option to demand allows the user to limit the words to be indexed to those specified, and no others. This is useful when you want to limit your search to a well defined issue, that can be reduced to known words or phrases, without having to wade through other data.

Trade Interrogatories on Disk and Paper

The least confusing way to answer interrogatories is to insert each written answer on the same page after each written question, without having to go back and forth between separate documents. The problem is that it normally necessitates retyping all the questions. This problem is alleviated if you send the interrogatories on disk along with the written version, and request a disk whenever you receive interrogatories in written form alone. Of course, parties need to coordinate disk sizes, wordprocessing software and computers beforehand.

In a letter to the author, the U.S. District Court Clerk urged that "counsel work with opposing counsel in all cases to put this concept into action." This convention would save all parties considerable time and expense.[1]

Optical Character Recognition (OCR) might theoretically obviate the need for distribution of disks containing electronic information. For several years, OCR has promised to allow us to turn information on paper into electronic form. However, it works incompletely at best. 99% accuracy sounds impressive, but even that level would still leave a few erroneous words on every page. For the foreseeable future, direct exchange of electronic information is and will continue to be superior to OCR.

Organize Documents with a Database

Discovery produces large volumes of paper. The best way to keep track of such information is in a database. You first enter the name, date received or produced, and identifying tag-words for each document. You can also import any significant words or phrases from deposition transcripts. This allows you to organize, find and track the receipt, production and location of all your documents. The beauty of a database is that while you only need to enter the information once, you can retrieve it in many different ways.

Think of it as a telephone book for paper people. From the same database, you can produce alphabetical lists (white pages), so you can rapidly respond to subsequent inquiries; categorical lists (yellow pages), so you can group all documents received or produced before a certain deadline, or related to a specific topic (by searching for identifying tag-words); or group in almost any pattern. There are many databases for both DOS and Macintosh. Paradox, by Borland is one of the most popular for DOS computers, while Filemaker Pro, by Claris is one of the most popular for the Macintosh.

Electronics cannot replace intelligence, and computer programs cannot substitute for preparation. Yet even if computers cannot replace attorneys, attorneys with computers may eventually replace attorneys without them.