Litigation Technology: An Emerging Discipline And An Invaluable Service To The Firm And Its Clients

Saturday, December 1, 2007 - 00:00

Editor: Ms. Nichols, would you give our readers some idea of your background and professional experience?

Nichols: I am a trial lawyer by background. I am licensed in Texas. Following the University of Texas Law School and a clerkship with a federal judge in Texas, I joined the U.S. Attorneys' Office in the Western District in Texas in the late 1980s. That constituted my introduction to digital evidence. I was involved on the first case that determined whether the seizure of unopened email was a violation of the federal Wiretap Act. We had federal agents seizing computers, and, at the time, we really did not have the handle on dealing with electronic evidence that we have today - the technology and the law surrounding the technology was not well developed.

From the U.S. Attorneys' Office I went into private practice for several years and then on to the Texas Attorney General's Office, where I handled large document cases in areas such as antitrust and fraud. From the AG's Office I went into the academic world and taught digital discovery and evidence at William & Mary Law School in Virginia for a number of years. While there, I worked with the Courtroom 21 Project, which is a William & Mary Law School undertaking that assists judges world-wide with litigation technology. This Project includes a fabulous courtroom to showcase a variety of technologies and performs a great deal of experimental work with technology in the courtroom and the legal issues that arise from its use. From William & Mary I went on to become a consultant for First Advantage Corporation, a risk mitigation and business solutions provider, where I served as a counsel and provided consulting services for the computer forensics and e-discovery division.

I joined Goodwin Procter at the end of July. While I have been here only a few months, I am very impressed by what I have seen.

Editor: Speaking of which, would you share with us the things that attracted you to Goodwin Procter?

Nichols: I actually started talking to Goodwin in 2003. What attracted me to the firm in the first instance was its approach to the practice of law. They embraced a practical business-oriented approach, through which they proposed to provide the best and most innovative service possible to their clients. Of course, a huge component of this approach was technology, and at this point in my career I was well prepared to judge whether a firm's commitment to innovation and technology was real or just window dressing.

Editor: I gather that there is a real commitment to technology and innovation at Goodwin Procter.

Nichols: Absolutely. Goodwin Procter recognized the importance of technology at a very early point and, I understand, started down the technology path with knowledge management in the mid-1990s, well in advance of most of the major law firms. A task force, consisting of partners and others developed a knowledge management function, created what is the firm's intranet. Out of this effort was born the Litigation Technology Group and a commitment to extend technology across the entire firm. In my opinion, all legal disciplines or practice groups benefit enormously from access to a strong technology base, and this recognition at Goodwin Procter occurred well in advance of most of the firms with which it competes for business.

Editor: The title Director of Litigation Technology is rather new. Can you give us an overview of the position and its responsibilities?

Nichols: It is a new title, and firms approach it differently. At Goodwin, I supervise a staff of about 30 technology specialists. I am responsible for developing best practices for data collection, data management, processing, and review within the firm. That entails providing the systems to manage the firm's projects and staffing them appropriately. I make decisions on litigation technology hardware and software purchases. I also assist the trial teams in a variety of substantive legal areas. What I do here is to ensure that, where they are dealing with technology during the discovery process, they understand the issues, including, by way of example, authentication of data when it is collected from a client or from an adversary. Our group acts as consultants on these issues, to explain how a particular technology enhances the positions they are taking in the litigation or to recommend appropriate vendors to assist in the collection, processing or hosting of data. We also alert the trial lawyers about their in-house options. Much of what we do concerns the selection of a variety of tools utilized in-house for e-discovery, scanning, real time transcripts, trial presentation, and so on. All of this is part of our development of best practices, which, of course, is constantly evolving as the law and technology evolve.

Editor: Please tell us about the experience and skills of the people who make up the Litigation Technology Department.

Nichols: The 30 or so people who constitute the group bring a variety of perspectives to our work. Many have come to us through the paralegal ranks and a couple are lawyers. Some have a technical educational background and experience working in the technology sector and then stumbled onto legal technology along the way. It is a very diverse group, which is what you would expect in this area.

At the moment, the group resides in our East Coast offices, Boston, New York and Washington, DC. Over the past 18 months, however, the firm has opened offices in Los Angeles, Palo Alto, San Francisco and San Diego, and I plan to extend the group's expertise to those offices through people in residence.

Editor: Would you tell us about the firm's proprietary on-line case management system?

Nichols: This is a home-grown system first developed in the late 1990's and improved through the years by our web development staff, where lawyers can post online all of their case-related documents, including court filings, correspondence, and email and it's all searchable. Everything is organized by being placed in virtual three ring binders. Also included are lists of people involved on the case, including contact information, as well as client information. The posted documents are also captured as part of our knowledge management system, if appropriate, which is also helpful for lawyers drafting documents in future cases. It is an invaluable tool.

Editor: What about the group's other services?

Nichols: One of the major services areas is our e-discovery consulting and e-discovery production. We have a large staff that deals with scanning and converting documents from paper to electronic format or from one electronic format to another. We also load electronic documents into our in-house review tool for the lawyers to review, organize, and code documents for production during the discovery process. Let me add, however, that we are currently using a tool that we are phasing out and will begin using a new in-house review tool in the next six months or so. This is a major undertaking. Our staff also deals with our electronic presentation tools and real time transcript software. We typically use Trial Director, Sanction, and PowerPoint for presentations in court and have electronic graphics development expertise using special tools. When we go to trial we use what's called a "trial in a box" that includes a server to store documents at a remote trial location with the appropriate software, as well as computers, printers, and scanners, to set up a "war room" close to the location of the trial to make sure that, whenever information is needed, it is found expeditiously, accessed, reviewed, printed, or presented electronically in court.

We also use videoconference technology for remote testimony and remote appearances in court, when necessary.

Editor: I gather the recent amendments to the Federal Rules of Civil Procedure have accelerated the efforts that you are putting into this area.

Nichols: Absolutely. We have seen the use of technology explode in recent years, not only in the courtroom, but within our clients' organizations for day to day business. The new Federal Rules specifically address how to deal with this unique type of evidence. With all new things, lawyers on both sides attempt to use the unknown to create a strategic advantage. The new Rules are no exception. So one of the services we provide to our lawyers - and which will assist them in their discussions with the firm's clients and with opposing counsel - concerns education of the type of technical and legal issues that arise in the preservation, collection, processing, and producing of electronically stored information within the specific case.

Editor: What about client Extranets?

Nichols: One of the services we provide is development of an Extranet to permit the posting of information, including correspondence and relevant case documentation, relating to a specific litigation. This is a secure site. It permits, however, access to those who should have access without the kind of duplication that results in extraordinary expense to the clients.

Editor: What has having these services available meant to the firm's clients?

Nichols: Having these services available has been invaluable for our clients. General counsel and the members of the corporate legal department do not necessarily set up their information systems in anticipation of litigation, but we have the ability to locate relevant data, preserve it, collect it, review it for relevance and privilege, and produce it. Because of the firm's knowledge base concerning a whole array of technologies, we are in a position to help clients expeditiously and thoroughly.

At the same time, the technologies we have available at the firm enable our own lawyers to access client data and case information quickly - it is hosted internally - rather than wade though piles of paper trying to locate a particular document. And, through our Extranets, we are able to share that information with our clients. They do not have to call one of the firm's lawyers to get to that information - something that they would be billed for - but rather can look for it themselves on the Extranet. General counsel are most appreciative of that fact.

Editor: Where would you like to see the Litigation Technology Department in, say, five years?

Nichols: Given the immense changes we have seen over the past five years in technology, it is not easy to predict where we will be five years from now. I think I am safe in saying, however, that the contribution that our group will make to the firm's litigation practices will be even greater than it is today. As the concept of a litigation technology service within law firms gains traction, I would hope that the Litigation Technology Department at Goodwin Procter would be looked on as a model of what this service can mean to a firm.

Please email the interviewee at mnichols@goodwinprocter.com with questions about this interview.