IDM: Vertical Focus: Legal

Vertical Focus
Internet Solutions for Joint Defense
Extranets have much to offer counsel & clients in multi-party litigation

by Allison Manning Esq. & Stephan Roussan,
Intercounsel LLC

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"There has to be a better way."
Such utterances are not unfamiliar to an attorney involved in a multi-party litigation effort. A call to a colleague is answered by voice mail. The fax is busy. The copier is jammed. FedEx has lost a package. And you are late for a meeting which has been canceled.
Multi-party litigation places enormous burdens on the resources of parties and counsel. Whether it is a civil case involving securities fraud or RICO charges or a complex products liability class action or a criminal investigation concerning a nationwide antitrust conspiracy, by the time the defense lawyer is consulted, there is a vast amount of material which must be analyzed as well as complex legal issues to be addressed.
Traditionally, and within express parameters set by the courts, lawyers whose clients are related by a common interest in the defense of a complex, multi-party action will organize pursuant to the terms of a joint defense agreement. Their group effort is to work together on common issues, to share information and to efficiently pool resources to manage and defend the large case. The goal is to improve the quality of the defense, save time and energy, avoid duplication and alleviate some of the burden on the judicial system. A carefully executed joint defense agreement allows multiple parties to communicate to advance this effort while preserving the attorney-client privilege.
But such an effort often may fall short of the intended goal. Until recently, lawyers had to rely on a hybrid combination of uncoordinated meetings, messengers, telephone calls, voice mail, faxes, postal services, and e-mail to transmit and receive information. The amount of time spent making direct contact, the enormous paper flow, the cost of each service combined with the lack of prompt feedback often undermined the effectiveness of the common defense effort.
In addition, the loose confederation formed by co-counsel in this context did not assure contact among the group on a regular basis. Given that each lawyer must attend to other case responsibilities, scheduling and time and place considerations created their own obstacles. The information shared by the group could not be current and complete at any given point in time. There were always time lags which could prove to be inefficient and costly.
'Net gains

The inherent connectivity of the Internet and its now-mainstream usage may help alleviate many of the problems described above. The Internet can easily be configured to function as an extension of the lawyers' internal computer network, with all of the members of the common defense connected.
The benefits are immediately clear. The burden of notifying the group of a simple meeting change does not require a phone call which must reach every party at every firm. The need to circulate a draft of a large brief to everyone in the group does not require countless collated photocopies and burying your fax machine. A relevant opinion does not need to be messengered or mailed overnight to each and every member of the group in order to be available for research.
A web site dedicated to serving a joint litigation effort can serve as a vital connection among all parties involved in a case, and access to the secure site can be restricted to authorized users only. The web site is always online, at all times, and allows the user full access to all posted information whenever the individual is free to log on.
Furthemore, the site can be configured so that it does not matter if an office uses a PC or a Mac, Lotus Notes or Novell NetWare, Windows 3.1 or Windows 95 ... web based technology functions on all platforms.
The Extranet experience

Using Internet technology to connect a group of select users (and excluding everyone else) is often described as an "Extranet." The idea is to share information, resources and tools with colleagues as if they were on the same internal computer network, without setting up dedicated private lines.
Extranets vary greatly in sophistication, from a simple web site with restricted access to high-end system integration, where, for example, documents can be sent to all the members of the group by simply dragging and dropping icons on the computer desktop.
One benefit of the web interface is that it allows users to perform a series of tasks all launched from one place. This might include real-time messaging and on-line conferencing, posting news updates, schedule coordination, document storage, research and writing collaboration. With each firm simply managing its portion of the case online, every colleague in the group is kept current and accessible. This allows for better use of time and resources and assures the maximum benefits of sharing information. And it can be done in a secure environment, under electronic lock and key.
It may seem as though some of these communication tasks could be solved with a simple e-mail distribution list, but in the case of joint litigation efforts, Extranets prove to be well worth the extra cost. For one thing, they offer a much greater range of security options - a fringe benefit of solutions to security challenges in the original extranet customer segment: Finance. In addition, extranet servers can store documents, news, schedules, contacts and research in organized, searchable repositories, acting as the nervous system of the entire case.
The fact that webs deal in structured content whereas e-mail trades in undifferentiated text make extranets the clear choice for extended legal exchanges. Using e-mail in a large case would entail sending every file to every colleague every time information is updatted, requiring lawyers to spend case time managing, saving and sorting long lists of messages and attachment folders. Under these conditions the joint effort could eventually lapse into a traditional, unwired common defense arrangement.
With a web-based link, documents are organized on the site by firm, case, type, or any other specified criteria - there is no need for every user to replicate this structure on their hard drive.
Advantages also accrue to the server-based storage inherent in an extranet. Without a central location for posting information, there is no assurance that all participants are actually using the same version of documents, news items and schedules. Changes on the web site are clear; keeping up-to-date is relatively straightforward, and adding, removing, and changing information and disseminating it is accomplished with immediate access for all users. Every user is able to view the most up-to-date information without concern that they are out of the loop. Case schedules in a common area can be updated at any time by any authorized user. A single service list can be posted and updated by different parties for the benefit of all. And so on.
A Virtual Tour

So how does this all work? Consider the following thought experiment. A lawyer in the case has been out of touch with the group for several days, attending to other matters, and needs to catch up. She opens her web browser on the computer and taps in the address of the joint defense web site, a non-specific, unregistered domain name. The connection is made through a recognized hook-up to the secure server. After a series of security checks, she is into the main menu.
The home page provides a welcome, instructions for use of the site and easy to follow directional buttons to move to the substantive pages.
First stop is the schedule page - several meetings have been rescheduled, depositions moved and a court date added. The changes can be integrated into her appointment book.
On to the news page, where an important development in a parallel proceeding is posted which affects several points in a brief she is writing. The lawyer follows a link to the research area, and retrieves an article from a law journal describing the ruling in greater detail.
She checks the thread message board where several colleagues have been strategizing on how to create a common document index. She has a database which can loaded on the site for the group to configure to suit the case and she quickly posts her impute on the matter.
Another message notifies her that the docket in a related case has been upload to the "related case" library. She goes to the library and downloads the file to her hard drive to review later.
One last stop on the e-mail directory to send messages directly to two colleagues about an expert witness interview on Friday.
Then, up-to-date, reconnected and informed, with relevant documents in hand (or laptop), our attorney logs off after only a few minutes. This is the real power of the Extranet.
Making your case

In addition to cost-savings, communicating via Internet advances a more effective defense effort on the merits. Users have the ability to post relevant information as it becomes available with the assurance it is immediately accessible to others whenever they go online.
Drafting a response to a pleading or a motion or a discovery demand, for instance, becomes an efficient collaborative effort. Once a draft is prepared it can be immediately posted to the site. There is no need to photocopy, fax, messenger and/or mail copies to every group members.
Instead, users have access to the draft which can be downloaded for local review, edited and re-posted as soon as it is complete. Every member can then review each colleague's work product. The papers can be prepared in final, reviewed when convenient by all, modified, if appropriate, by any particular party and printed out of each individual's word-processor. And all of the work can be done from the user's desk.
Extranet economies

Setting up an efficient and effective Extranet requires Internet development expertise. An experienced web development company will be able to create a simple-to-use interface that combines all of the functions outlined earlier, and will be able to restrict access to authorized members through layered security measures. The web developer can configure the technology components to match the specific demands of the case and the users: the site is custom tailored.
As with other technology investments there are both up-front and continuing costs. These vary according to the size and sophistication of the project, but expect to pay $7,000 to $15,000 to set up a solid group of joint litigation tools for a small group, and between $300 and $1000 in monthly hosting fees.
Other maintenance and administration costs of the project may billed separately, at anywhere from $50 to $150 per hour. Thus a joint litigation effort consisting of ten firms may require that each firm contribute up to $1,000 for setup and $50 per month in fees.
To see how effective the return can be compare this investment with the substantial dollar economies to be achieved by a common Internet defense effort in a large case. From the outset, the amount of time spent gathering facts, conducting research, and communicating among colleagues for each party can be expensive but not necessarily efficient.
Consider a hypothetical situation. Initially, the parties meet to determine the scope of cooperation among a common defense group and to formulate a joint defense agreement. This first meeting may take several hours and involve a group of a dozen or more attorneys and paralegals, some of whom may have to travel from out-of-town. The total cost of such a meeting can run in excess of a thousand dollars per client depending on the number of representatives present.
Out of the initial strategy meeting, the first joint effort could be to prepare a motion to dismiss. The cost of legal research for each client in a complex case, even if it is shared, is enormous. Dividing research tasks among the group and sharing the results on the web site can generate dramatic savings. Instead of having to circulate drafts to all members of the group and meet to review and discuss the results of the research, the memoranda can be sent to the site, posted and downloaded, and then edited and reposted. There is no need to coordinate a convenient time, nor does the exercise require circulating dozens of drafts.
Among the group there is likely to be critical, privileged information which must be gathered from various sources. Posting the data which can be shared in a protected environment allows for a more coordinated defense effort at a reduced cost.
Security

All of these solutions sound great, but they mean nothing if the technology cannot meet the legal profession's stringent security needs as well. Confidential information must remain confidential - for the integrity of the site and to ensure the enforcement of the joint defense privilege. Although no security measure can be labeled foolproof, web-based solutions have developed to dramatically decrease the likelihood of breach of security.
As noted earlier, the everyday use of electronic financial transactions such as credit cards for online commerce has spurred development of robust secure server technology. Law firms are among those who can benefit from these advancements. Internet Service Providers with experience in security issues can implement multiple layers of protection, using techniques such as IP filtering, IP tunneling, Secure Socket Layers (SSL) client/server key encryption and server-resident username and password restrictions. Selecting a reputable and accomplished ISP (or web development partner) should therefore rank first among your concerns.
Thanks to the boost from electronic commerce, Extranets can now be deemed 'ready for business' and will only become more secure as web technology advances. E-mail by contrast remains more difficult to secure, particularly when the goal is to set up a budget-conscious online communication package with many participants for a finite period of time. Plug-in encryption tools do exist, and can be configured to prevent accidental or incidental reading of private correspondence. Web site-resident conferencing systems are easier to secure, because access to them can be appropriately restricted.
Trends & emerging technology

The federal district court in the Southern District of California recently enacted a rule which provides for electronic filing. And several sites have been set up to post civil class action pleadings. As the technology advances and the access to the internet becomes widespread, it is only a matter of time before the use of paper becomes limited and electronic filing become the norm.
Continued development of Internet capabilities in the legal community, together with court mandates to reduce paper and establish electronic filings, suggest that we are headed into a future of dedicated case web sites with electronic dockets. In this scenario a number of nested webs would form a standard backbone for litigation.
The most secure level would be within a firm's Intranet with all the material unique to an individual client. The next level would be an Extranet among common interest parties. At the next level, the public Internet could be used to serve other parties and file with the court with full public access. The legal work for the individual party will move from the firm's LAN or Intranet, to the joint defense Extranet, to opposing counsel's network, and to the court, all online. All of this technology is already in place. Only developing the practice to use it in the legal context is wanting.
New trends in technology also stand poised to both simplify and enhance the online litigation experience. Web-based interfaces with databases are improving rapidly in speed and reliability, and are making the amount of information deliverable through a web site virtually limitless - all while keeping the process of finding what you might be looking for very simple.
User-driven components (which usually update information in online databases) are making it easy for Extranet participants add, remove and update information on their own. Tasks such as uploading new documents for others to view or making schedule changes will not require the intervention of a web administrator - nor will there be any time lag between a lawyer making a change and the time it takes for that change to appear.
Webcasting technology, sometimes called information 'push', brings a publish-and-subscribe model to the Internet which has important applications in time-critical business processes such as legal proceedings. Important schedule changes or document postings that are very time-sensitive may prompt a user to request (i.e., subscribe to) a notification channel on which his/her colleagues' critical information is published. Push clients built into screen savers and web browsers do not require explicit user intervention, and even offline computers are updated automatically the next time the user logs on.
Conclusion

Computers used to be viewed as devices that isolate their users. But the Internet allows lawyers to be connected as never before, and can greatly enhance and enliven the collaborative process. The time and cost savings will allow the lawyer to realize increased efficiency and effectiveness in managing the defense of a client.
Joint defense will continue to be a complex and demanding process - but web technology can help your firm manage information better and use resources optimally. The robust, reliable and flexible platform on which it is built will ensure that using the Internet for litigation will soon become standard procedure.
This article originally appeared in the Tech Trends Supplement of the New York Law Journal. It appears here with the gracious permission of the authors.