OTLA Trial Lawyer Winter 2021

26 Trial Lawyer • Winter 2021 By Trevor Clark F acing a series of major challenges in Oregon, from the pandemic and its economic impact, to forest fires and more, we’ve all had a crash course on adjusting to new realities. To date, 2020 has been one monster of a year. Becom- ing increasingly tech savvy, if only in our ability to run or attend Zoom meetings and use other tools that support remote work, is no small thing. As we look for- ward to calmer times and adjust to a new normal, we will, inevitably, emerge with new unexpected skills and benefits. As the owner of a Portland-based e- discovery services company, I used to joke with clients and some of you at conferences that “winter is coming.” Ah, back in those innocent days with Game of Thrones just barely in our rearview mirror, I could really throw a momentary Trevor Clark chill in the air. An unavoidable new real- ity of e-discovery is arriving for small firms and solo practitioners. Are you ready? Wink wink. Indeed, in this advanced digital age, data volumes have been growing exponentially for years. Potentially discoverable communications and other types of evidence are nowmore dispersed than ever. This shift is permeating both private and business culture. Common communication mediums are shifting away from an email-centric world to more dispersed communication tools such as mobile apps and cloud-based communication and collaboration plat- forms. E-volution In keeping pace, e-discovery tools and practices have been evolving, becoming easier to use and more comprehensive in scope. Firms embracing e-discovery tools in their practice not only save time and money, but better serve their clients through a more thorough and efficient process. With the increased agility with technology this period has generated, attorneys will feel more comfortable and incentivized to embrace new technolo- gies and approaches to managing elec- tronic evidence within the discovery process. It has been far too long that fully modern e-discovery tools and practices have been accessible predominantly to large firms and corporations, to the clear disadvantage of smaller practitioners. It doesn’t have to be that way. While e- discovery tools and approaches have matured and expanded enormously in recent years, pricing has dropped as competition in the field has risen, becom- ing more flexible, making these tools more accessible than ever for the small firm practitioner. So if winter is coming, who and what will emerge to challenge law firms? Con- sider the call I received from a well-es- tablished trial lawyer who was in the early stages of a wrongful death suit. She had just received a production request, the second in the case so far. The first had been straight-forward. She had her cli- ents email her office a handful of various records: medical records, insurance documents, financial records, etc. They also dropped off some additional hard copy documents. She then had her legal assistant scan the hard copy records into PDFs, combine into larger PDFs per RFP numbers with Bates labeling, and send off to opposition. Sound familiar? Arduous but no problem for them to handle. But the second production request was unsettling if not overwhelming, particularly as a solo practitioner. It con- tained a series of specific requests for communications from a wide range of now very common digital sources, in- cluding smartphone data and social E-DISCOVERY FOR THE SMALL FIRM: WHY ADOPT IT SOONER RATHER THAN LATER