Timing is everything. Lawyers know all too well that we present cases to juries in the form of chronological stories. I learned this on one of the first cases I worked on, where the chronology of when faxes were sent showing a contractual change was evidence of a breach of fiduciary duty owed to the Plaintiff. The chronology had to be built from scanned TIFF images, without OCR, of faxes sent in the late 1990s. This was no easy task due to the form of production.
The end result of the chronology of events was a powerful demonstration of all the different contract modifications over a 15-minute period of time. We were able to sound this drum very effectively to the mediator, showing when the Defendants had breached their fiduciary duty to the Plaintiff down to the minute.
We do not live in the world of faxes anymore. Today’s discovery includes everything from emails to text messages and social media. Each piece of electronically stored information is a moment in time that adds up to tell a story.
Who did what and when? Consider a recent case over flood insurance coverage for damages sustained during Hurricane Sandy. The Defendants had appealed evidentiary sanctions issued by a Magistrate Judge.
The Plaintiff’s attorney traced the chronology of events from emails to support the memorandum of law for the sanctions motion. The Court summarized the facts and argument as follows1
On February 11, 2013, Jeff Moore finally emails Ms. Ramey and attaches copies of the January 7th and January 28th reports, purporting to contain the engineers seal and signature. However, a cursory analysis of the reports forwarded by Mr. Moore shows that the original report had been manipulated to fraudulently attach Hernemar’s seal and signature from December 28th report to the January 7th report. A simple review of the two signatures on the cover pages of the December 28th and January 7th reports shows that the signatures are identical. In an email change beginning on January 27, 2013 between Hernemar and Gary Bell of U.S. Forensic, it becomes readily apparent that they are simply swapping pages between reports to give the false impression that Hernemar had previously signed and sealed the January 7th report. However, Hernemar never signed the January 7th report, it was not contained in his file at the October 16, 2014 hearing, and Hernemar did not produce the January 7th report in response to the Attorney General’s subpoena.
The argument is factually heavy on who did what and when. Tracking factual events of this nature is far easier in a review application when information can be organized chronologically from the metadata of the electronically stored information, and then mapped to the relevant parts of the larger story. This can be done in Everlaw by leveraging both the document review features and StoryBuilder.
StoryBuilder is a tool to outline arguments for motions and depositions. The first step is to outline your motion in StoryBuilder. What facts do you need to support your argument and the law?
Review your discovery based on individuals, content of discovery, and dates. For example, you can conduct a search by selecting “metadata,” then “From,” and then selecting a specific individual. Add keywords to narrow the results to the topic you want to analyze. Organize your results down to the minute using the date field.
Once you identify a message that supports your argument, this prospective exhibit can be added to your outline in StoryBuilder. Simply click the StoryBuilder button and add the document to the outline. Notes for the prospective exhibit can be added.
Lawyers are storytellers. We present evidence and testimony to jurors in the chronological order of events to prove our client’s case. Leveraging metadata to determine what happened and when in a lawsuit can be done very effectively in Everlaw. Moreover, lawyers can use this information to build their “story” in StoryBuilder, connecting the facts to the argument.
1 Raimey v. Wright Nat’l Flood Ins. Co., 2014 U.S. Dist. LEXIS 178910, 38-40 (E.D.N.Y. Dec. 31, 2014).