1.1 Client Documents
In any serious matter, it is useful to have a preliminary look at documents as early in the process as possible. In business or commercial matters, witnesses may become locked into perceptions or theories that cannot work given the content of available documents.
Although it is widely known by judges and juries that people sometimes write documents for self-protection, rather than to accurately record the facts, most relevant documents get serious consideration in any form of dispute resolution.1.1.1 E-mail
When individuals are involved in non-business disputes, e-mails may not have been saved with regularity. However, in business situations, all e-mails are usually saved for some time period. Archived e-mails are easy to search, and usually turn up informal views on the subject of the dispute. For example, the CEO may tell the lawyer that the product is solid, has never had any problems, and that the employees think it is just grand. An electronic search of the company’s e-mail will quickly reveal what employees think of the product, what kinds of problems have gotten attention within the company, and how specific problems with the product have been addressed. This kind of electronic search is inexpensive and relatively quick. The lawyer provides the search terms that define the general area of the problem, and those search terms are run, using standard search software, against the digital archives of company e-mails for the relevant period of time. The “hits” are ranked for relevance by the search software, and browsing the highly ranked hits will give the lawyer a quick overview of how the company has dealt with the problem. 1.1.2 Technology and “The Smoking Gun”
Similarly, it is important in any serious dispute to capture the most relevant documents in digital format as quickly as possible so that they can be searched for potential “smoking gun” material.
If it is highly likely that there is no smoking gun document, then the strategist may have greater flexibility in developing workable case theories. Technology makes it relatively easy to capture the content of a lot of documents in short order. For example, if a company has a problem with an employee who has not been promoted and who threatens to sue, it would be useful to the strategist to know very early on what the documentary record looks like. This can be done by bringing a portable document scanner to the department where the employee works, and scanning all of the files of the employee’s supervisor.Once the files are scanned, they are turned into digitally “readable” format with optical character recognition software, a very speedy process. These files can then be searched for adverse comments about the employees, adverse comments about the projects on which the employees worked, or positive assessments of either. The files of the immediate supervisor are not the only place that relevant documents might be located in a case like this, but these are the files most likely to contain a smoking gun document. All of the locations where possibly relevant documents might be located can be searched as the fact investigation proceeds, but it is important to strike quickly where the most important documents are likely to be. Competent litigation support personnel can scan 20,000 to 40,000 pages a day, depending on the nature of the material. Optical character recognition (OCR) processing takes a few seconds a page, depending on the speed and capacity of the computer equipment. In most cases, lawyers can have a searchable database of 20,000 to 40,000 pages within a few days.
Because lawyer and paralegal time is expensive, it is inefficient to have people reading documents before software has located the subset of the documents most likely to contain the needed information. The cost of scanning core documents up front is much less than the cost of handling paper copies of documents many times over as inevitably happens in disputed matters. Commercial scanning is about 15 cents a page, and commercial OCR processing is another 5 cents to 10 cents a page. Lawyers can outsource the storage of and access to collections of digital files to document repositories for quite reasonable fees. The document repository service provider includes the document management and search capabilities as a part of the service.
1.1.2.1 Internet Searches
The internet may also yield useful information very early in the fact investigation process. Searches result using each of the five principal search engines (Google, Yahoo, Microsoft engines, etc.) should be examined to determine whether employees or others have posted information that needs to be considered.