Spinal Tech.

There is an excellent article in the most recent Corporate Counsel magazine on e-discovery issues and a related trial.

It all starts with the title: "This is Spinal Tech." It tells the story of a Medtronic trial from 2004. Medtronic was accused of not paying royalties on a doctor's spinal surgical inventions. In the end, the verdict was half a billion, but the road to the verdict is really the focus of the article.

Medtronic handed over 2 million pages of paper documents stored in over 1,000 boxes. Initially, the document review was low-tech: indexing using Word or Excel. After a while, it became clear that was not a good solution. Both sides brought in electronic discovery experts and then the real fight began:

Discovery of Medtronic's electronic documents created a different set of obstacles. When Jeffer, Mangels partner Dan Sedor first requested Medtronic's electronic documents in the summer of 2002, he met fierce resistance. The company claimed that it would cost as much as $300 million, require 40 contract attorneys, and take three years.

Michelson lawyers eventually filed a motion to compel electronic discovery in January 2003. Like many cases today, the electronic feud centered around backup tapes. Michelson and Medtronic couldn't agree on the number of backup tapes to review, how to search them, or the cost. That May magistrate judge Diane Vescovo delivered a compromise. Michelson would pay approximately 40 percent of the cost of retrieving electronic documents from 124 selected backup tapes. Medtronic's discovery consultant, Kroll Inc., would extract the files authored or modified by 40 key Medtronic employees and search those files for more than 1,000 keywords, such as "Michelson" or various patent numbers. Medtronic lawyers would then review the results for responsiveness and privilege.

The rest of the article reads like a Who's Who of electronic discovery as the story of the frenzied discovery process and trial preparation. Kroll OnTrack, Attenex, FTI Consulting, and others all get a mention.

My favorite reference: Death Star Pilots. These folks were the attorneys who reviewed electronic documents for 11 hours a day for months in a special electronic review conference room which "was like the back of a special operations truck."

What's interesting is that Medtronics's lawyers declined interview requests, so it is all about the plaintiffs. That said, this article is a good overview of the logistical challenges of taking the modern large case to trial. Interesting stuff.