Mistakes in discovery happen regularly leading to unnecessary delays or case dismissals, and challenging or preventing just outcomes.
In the past few months, we have witnessed what happens when discovery goes wrong on a grand, national stage. From the Alex Jones case to the revelation of emails implicating former President Trump’s legal team discussed efforts to stop the 2020 election certification with Supreme Court Justice Clarence Thomas.
And while these are only two examples, mistakes in discovery happen regularly – damaging potential cases, leading to unnecessary delays or case dismissals, and challenging or preventing just outcomes.
This past spring, we learned that two-thirds of prosecution offices around the country are still reliant upon DVDs and flash drives as predominant methods to share digital and video evidence. Often the discovery process involves a patchwork of systems including case management, manual and paper-based practices, work-around digital tools not built for discovery, and hardware like DVDs and flash drives. Without a consistent, uniform system to share all pieces of evidence associated with a case, things get lost, overlooked, or inadvertently shared with the wrong parties
The large and growing volume of video and digital evidence only further exacerbates the time, money, and people resources required to support the complexity of discovery. And, at the same time prosecution offices are facing some of the greatest challenges they have experienced in recruitment and retention, in part due to the diminishing supply of new law school graduates, which the American Bar Association reports have declined by 25% since 2013.
With case backlogs, volume and complexity of the types of evidence growing, talent supply shrinking, and retention challenges stretching remaining staff even further, the time to consider modernizing your legal discovery practices is now.
1. Reduction of human error.
Modernizing the discovery process with systems specifically built for discovery puts more power at your fingertips to provide role-based access controls, automatic or custom expiration dates on evidence access, evidence receipts, a strong audit trail, and safeguards for non-discoverable or highly sensitive evidence. By eliminating manual processes, these additional discovery-specific capabilities add another layer of protection against the potential for human error resulting in sanctions, delays, or dismissals.
2. Enabling greater trial tools.
A contemporary system should not only provide protections for discovery, but when equipped with modern video and digital evidence offerings, it unlocks more opportunities for prosecutors and trial teams to enhance the productivity of their case preparation. Automated transcription and translation are a great jump start to building a case strategy. The use of tagging with timestamps can help focus attention across inordinate hours of video footage for trial teams, or in communication with defense counsel about potential plea offerings. These intuitive and easy to use tools allow prosecutors to easily redact video and audio files, reducing the wait time for IT or digital evidence specialists to do basic redactions.
3. Resource productivity.
We regularly hear from teams nationwide with workflows that still include physical delivery (or retrieval) of video and digital evidence. This creates delays ranging from days to weeks (or even months) for receipt of evidence. Then, the burden of duplicating this same evidence in a discovery packet for defense counsel commonly follows, a process legal administrators from around the country reported can absorb on average up to 50-100 hours per week. Streamlining the flow of evidence in digital form across agencies creates efficiencies that save considerable time. If instead the information is digitized, but not in a system built specifically for discovery, such as an internal server or a sharefile site, there is a missed opportunity for time savings across teams. Files could move digitally, but further tools for trial preparation would not be available.
4. Empowered individuals contribute more to engaged teams.
Robust conversations about technology needs and remote working capabilities are alive across prosecution offices today. While some parts of the job offer less flexibility, where it does make sense, investing in technology that reduces mundane, manual work enhances employees’ sense of meaning and engagement. In Daniel Pink’s analysis of intrinsic motivation, autonomy, mastery, and purpose are three keys to enhanced job performance and personal satisfaction.
5. Victims deserve it.
Crime victims deserve the best possible chance at justice on the most expeditious timeframe. Cobbling together systems not designed for discovery creates unnecessary security exposure to sensitive evidence that is a part of that victim’s story. One scenario we often hear about is frequent changes in a defendant’s representation. When new counsel enters a notice of appearance, it should be as easy as turning off and redirecting controlled access so previous attorneys no longer retain evidence on the case. Many delays due to evidence missing from discovery or dismissals because of evidence integrity questions can be prevented with the right support.