The Litigator's Secret Weapon: ONSITE3 's DXR Software

Monday, January 1, 2007 - 01:00

Editor: As a litigator in the employment law practice of your firm, you have come to depend heavily on use of ONSITE3's DXR software for data review as part of the litigation support effort. What measures did you use before ONSITE3's DXR came on the scene for organizing, tagging and reviewing documents?

Bekken: Our law firm's prior choice was a vendor's program which served as a document sorting tool for depositions and documents, but one which did not have the ability to search for individual words and key phrases with any facility. It was not an effective tool for the kind of searches needed when you are involved in litigation. If you are trying to find certain key words, it fails to extract them. The real advantage of DXR is that it allows you to find the needle in the haystack and to sort and manipulate information in various ways.

A company's legal department or law firm may hire an outside vendor to run searches, which gets to be very expensive when compared with doing the same work in-house. With a tool that allows you to do this, you are able to perform the same function as an outside vendor for less money and less time in review. You are controlling your own destiny if the work is done in-house.

One of the things you need to do in litigation is to refine searches. DXR allows you to review what is downloaded and to decide if it is meaningful or not. It is difficult to have outside vendors do this because they are not as familiar with the case as you are. By having someone deeply involved with the case perform the searches using this advanced software, you can download information quickly and decide what is relevant in less time. That is the other real advantage - the ability to get finite searches on large amounts of documents done in record time.

Another aspect of using this document review tool is that documents can be uploaded and reviewed in their native format. They do not have to be converted to .tiff or .pdf files in order to be reviewed.

Editor: Aside from the reasons you have mentioned, why is a combination of in-house review and using DXR superior to sending documents out to outside vendors? What conveniences does it offer?

Bekken: With outside vendors you are depending on their time and having their people perform the review; you are thus contracting out critical litigation issues. You the litigator or in-house counsel must oversee and control outside vendors to determine they did the work correctly. Vendors may not know what is significant or the relevant time frame. Also, since they are not working with the case and are not familiar with many of the subtleties involved, they may come back with 2,000 documents while you may have been able to refine the output to 50 documents if the work is done in-house. With DXR you can control everything and not be dependent on the people working on a matter. For instance, I have a case that has been going on for four years. I have the information in my head but someone else going through the record would not know what is significant, the relevant time frame or why something would be important.

Editor: How does DXR facilitate the production of non-traditional forms of communication, such as email and text messaging?

Bekken: The new rules of discovery require production of text messages and other electronic documents. The ability of DXR to take the text messages and put them into an optical format as opposed to a word document makes a difference in terms of reading some of the non-traditional forms of communication. This system is far superior to the older methods of gathering information which are not able to check text messages.

In a court room it is easy to download a document as I did recently during a deposition. If a witness is testifying, you can quickly pull up his deposition or testimony and question any inconsistencies.

Editor: Can you access this system remotely?

Bekken: You can load it into your other systems using a portal which ONSITE3 supplies. You can also access the information remotely through their system. A normal lap top with wireless Internet access works fine in downloading information.

We had a situation where a witness testified that something happened on a specific date. We were able to pull up a document to refute his testimony immediately by using this system.

Editor: Once documents are in the system, are there security measures in place to prevent tampering with the information?

Bekken: Yes. Once a document is loaded into DXR, no one can tamper with it. Litigators and administrators do have access to a flexible security mechanism with adjustable levels of security, allowing for access rights at the individual user level. User activity may be tracked and logged.

Editor: Is DXR able to uncover inconsistencies in searches, something a human eye might miss?

Bekken: That is the point. If you are searching through several documents, you may pull up similar information. In a case I am involved with I have to deal with 30,000 documents accumulated over a four year period. Reviewing that amount of information, I am not going to be able to remember precisely all the fine points to discover inconsistencies. A knowledgeable attorney using DXR is able to take advantage of its search capabilities to pull off the relevant information and build upon those searches if he notices something important during the search.

Editor: How much training is required before you are adept at using this system?

Bekken: This system is easier to use than some of the research tools I have used in the past. Within an hour or hour and a half I was able to use the system. From time to time I have had to call ONSITE3's DXR customer service whose personnel have been very helpful in telling us how to use it. The reality is that you may be able to refine a search but there are ways that things can be sorted and manipulated that the service can help with.

To take advantage of the more complex search capabilities of the system may require more time. After you start working with the system, you begin to learn and build knowledge in its use. Like any software program, the more you use it, the more efficient you become with it.

DXR provides many ways to search for documents. For example, if you are trying to look for a particular meeting that took place in an unusual resort, you can search for that resort or for the dates that the meeting took place. There are different things you can search for and there are other ways to sort information to get at those documents. If you hit a dead end, customer service can guide you in turning it into a cross-road in order to go another route.

Editor: Do others in the firm know how to use the system?

Bekken: I am the first one. I believe a firm-wide training program for the other members of the firm in getting them introduced to the system would be very much in order.

Editor: How cost effective is the use of this tool? How does it provide a level playing field for a small firm with a limited budget or whose client has limited means against a Goliath-size firm?

Bekken: It is much more cost effective than sending the work outside or even using paralegals in-house. You have the ability to provide clients, who are not Fortune 100 companies and who do not have the resources to pay outside vendors for these searches, with the means to find information in a cost effective manner. It puts them on a more level playing field. Sometimes the other side can bury you in documents. This tool allows you to find what you need by sifting through all those documents in record time and at minimal cost.

Editor: Could you give our readers some examples of how you have used the DXR system in your practice?

Bekken: In a harassment case with which I was involved a witness said that the employer referred to him as an "island man." Representing the employer, I was able to search every single document and advise the court that this term did not appear in any of those documents.

If you are looking for particular testimony regarding a certain incident, let's say that it is a harassment scenario, you can search all of the various times that people have talked about that incident throughout the documents. The real key to its superiority as a system is that these individual two word phrases, such as "island man," do not hit the scope of other search engines.

The advantage to an in-house legal department is that during an internal investigation, this system allows them to assist outside counsel to identify documents. They do not have to wait for outside counsel to find relevant facts or depend on them to do the search. In-house counsel has a way to monitor what is being done.

The cost of discovery today is mind-boggling, particularly if you get into situations where documents are redacted heavily. With this system in-house counsel can get a handle on what is going on. If they monitor outside counsel, they can check their searches and make suggestions on other ways to find information. Counsel are removing the time wasted with paralegals reviewing documents where one program alone can find the text in the document immediately.

The benefits of DXR are two-fold: one is finding the documents and the other, finding additional information that would not have been found but for the fact that you can find things that lead to new pathways for discovery. If you have a road block, you can often go down another path which may lead to still another fork in the road. Using DXR really opens up the ability to develop other defenses or to find documents that you may not have known existed.

Editor: Doesn't this tool also sharpen your questioning of the other side?

Bekken: What it does for cross-examination is fantastic. During trial we were able to bury the other side when they had a witness contradicting what was said in deposition. We were able to develop quick responses during such instances, being instantaneously on top of the matter at hand. We clearly had a "secret weapon" that served our side well.

Please email the interviewee at rbekken@mpglaw.com with questions about this interview.