Virtually all civil cases are driven by documents. Personal injury lawyers must gather and manage medical records and damages documentation. Business litigators must collect company records and corporate communications. Employment litigators need to obtain the client’s personnel file, disciplinary documents and the like. The problem is that in the digital-information age, the volume of data can strain anyone’s capacity. Cataloging and tagging case documents is therefore a core trial lawyer’s skill.
You need to have document control before depositions begin. Whether your goal is to use documents for impeachment or to establish elements of your case, remember that you will probably only have one shot at taking a witness’ deposition, so dig in and get a jump on the work. Keep in mind that you want to tag a document by date, witness, issue code and, when it comes to your client’s documents, by production status (e.g. responsive or privileged). Consider taking the following steps.
The recordkeeping habits of clients can vary widely. Nonetheless, a client who drags his or her feet producing requested documents is flashing a warning sign. Of course, clients may not have access to some documents (e.g. medical records). Medical records releases thus need to be part of any personal injury practice.
Here, work styles can vary widely. Some attorneys opt for creating databases and entering detailed information about each document page. Most database programs allow you to link the digital document file itself. An alternative approach utilizes “tags” to mark selected pages of a PDF that could potentially contain hundreds or thousands of pages of documents. I use DocReviewPad, an iPad app that allows you to create issue codes and production-status labels on the fly. In addition to issues tied to the elements of the case, you should consider also tagging documents by case themes. This will give you a leg up for your closing argument.
Gathering and reviewing your client’s documents is only the beginning of the cataloging process. Once the litigation is underway, you should serve a Request for Production on your opponent and you will need to input the response into your storage and retrieval system. The same goes for responses to third-party document subpoenas.
No later than the deposition preparation phase, you need to start harvesting the benefits of your document cataloging efforts. Your system should be capable of issuing reports that can be witness or issue specific. You may also want to tag documents with an event date, so you can create a chronology.
Depositions will probably reveal that some of the documents you tagged are no longer relevant to the case. Similarly, the facts they reference may have been admitted. At some point, it will become apparent that some documents matter and others don’t. You will need to begin tagging “hot documents” that are likely to show up as evidence at trial, whether favorable or adverse. Once you’ve tagged these hot documents, you need to begin with a focus on the admissibility of those favorable to you. Among a variety of evidentiary considerations, you need to make sure you have (or are capable of obtaining), a complete copy of a document. Incompleteness is a valid trial objection per FRE 106. If you need to refresh your grasp of document-based trial objections, take a look at my Quick Guide to Federal Evidence Law.
Be forewarned: document review and cataloging, especially when dealing with a multi-thousand document case, can be a tedious process. Your job as a trial attorney is to do the hard work and, when necessary, find the needles in the haystack. An early commitment to the case-document cataloging process will ensure the best result possible and a winning edge.