“What we have here is failure to communicate.” That is the classic line from the 1967 movie Cool Hand Luke, and while a lack of communication in preparing deposition packs will not lead to the same consequences as befell Paul Newman’s Luke Jackson character (hopefully), communication at this stage of a litigation project is critical.
What is a Depo Pack?
At the tail end of large, complex document reviews, the review team may be asked to prepare deposition packs (“depo packs”). Depo packs typically consist of documents that the review team has determined to be “hot” or “very hot” and relate to issues that are relevant to a specific deponent. Often these documents also include the name of or reference to the deponent, but not always. Depo packs are often created for both your client’s witnesses and the opposing party’s witnesses. They may contain an index of some sort, which outlines the issues critical to that specific deponent and links to the documents themselves. The documents in a depo pack may be organized by topic or date (creating a timeline) or in whatever way is most helpful to the legal team. In most cases, we can create depo packs automatically using existing tagging and searches; however, typically we put one more set of eyes on the documents to make sure they will be helpful to the legal team.
Depo packs serve two purposes: (1) to help prepare your client’s witnesses and experts for their depositions by refreshing their recollection of specific events or communications and focusing their attention on issues that are central to the factual story and legal strategy; and (2) to assist the trial attorneys in preparing to depose the other side’s witnesses or defend their own witnesses. Depo packs can be a tremendous benefit to the client as well as an effective tool for the attorneys deposing or defending depositions. To maximize the usefulness of the depo packs, there should be consistent communication among the legal team and review team.
Communicate with the Legal Team to Understand Their Expectations
1. Who are the critical witnesses?
When the case team indicates they would like depo packs prepared for certain individuals, they should provide some basic information such as the witness’s name and job title, plus more substantive information such as their role and daily responsibilities on the project, what issues the case team expects to be in play and how this witness works into the overall case strategy. These all are simple questions that if answered on the front end make the product on the back end more useful to the legal team and more economical to the client. An extra 15 minutes spent here could be the difference between an overly broad 500+ document depo pack full of emails or a focused 100 document depo pack containing primarily “very hot” documents.
2. What are the key issues?
Key issues often evolve over the course of a litigation and the issues that were most important at the outset of a review are sometimes superseded by others as claims are added and dismissed and additional facts are uncovered. It is important for the legal team to communicate with the review team what the critical issues are at the time of depositions and for whom those issues are critical. For example, in a negligent construction case, issues such as the impact of weather delays or whether materials were available on a timely basis may be critical when deposing the project manager responsible for day-to-day activities. Those same issues may not really a factor for the engineer who designed a specific piece of equipment. Similarly, the same document may be “very hot” for the deposition of a scheduling manager while only “marginally relevant” for the deposition of a vice president responsible for bidding on the project. To be able to prepare helpful, effective and time-saving depo packs, the legal team and review team will need to communicate to make sure both are on the same page.
3. What is the most helpful work product?
Ideally, the team creating the depo packs will have been deeply involved in the case for months, if not years, and will know the ins and outs of the parties and issues involved. However, in some cases, this won’t be possible. It is simply not realistic to have attorneys with extensive backgrounds in the relevant subject areas be involved in all phases of the review process.
A good depo pack creation protocol (or Standard Operating Procedure) is helpful for outlining the workflow and following repeatable steps. The review team manager, in close coordination with the legal team, typically prepares the depo pack SOP, and then the legal team signs off on it before work begins. The depo pack SOP can include case background but it should be focused on what types of documents are useful to support the client’s case and disprove any of the opponent’s claims. The SOP may also include a general limit on the number of documents to be included in a depo pack, how long the depositions are expected to last and how the pack should be organized. Sometimes we provide depo packs in electronic format with links to documents within Relativity. Other times we export the depo packs and request that they be printed into binders for the legal team. The goal is to provide the legal team with a narrow yet thorough set of documents in a format that is most helpful and useable for them.
4. What if we can’t narrow down the depo pack to fit the legal team’s requirements?
There are times when we’ve been given a 100 document limit for a depo pack but it’s just too difficult to narrow the documents to an arbitrary number. In this situation, it is important for the review team to inform the legal team as soon as they meet the crossroads so that the subject matter experts on the legal team can set aside time to help narrow the document set. Typically these documents are being reviewed by attorneys who are not necessarily subject-matter experts, and it is conceivable that what an attorney sees as an early stage drawing diagram could have information that would raise red flags to an engineer. Someone with basic medical knowledge could look the language in a medical report and think nothing is unusual while one with detailed knowledge could think the language is highly relevant. The only way to ensure the important documents are identified and provided for consideration is to communicate.
Consistent, open and timely communication among legal team and review team will go a long way in ensuring that the depo packs only contain the most important documents related to that deponent without leaving out anything critical. Along the same lines, the completed depo packs should be provided to the legal team with plenty of time for them to review and then come back with additional requests. After all, the legal team’s own view of things may evolve as they review the depo pack and they’ll need time for the review team to identify additional helpful documents. The more the case team can review sample documents, the better feel they can get for what is needed in depo packs.
DISCLAIMER: The information contained in this blog is not intended as legal advice or as an opinion on specific facts. For more information about these issues, please contact the author(s) of this blog or your existing LitSmart contact. The invitation to contact the author is not to be construed as a solicitation for legal work. Any new attorney/client relationship will be confirmed in writing.