When the Deepwater Horizon oil rig exploded on April 20, 2010, few people could conceive the magnitude of personal injury and economic and property damage in the states bordering the Gulf of Mexico that would result from the three-month spill of 4.9 million barrels of oil. Under the Oil Pollution Act of 1990, a party responsible for the discharge of oil from a vessel or facility “into or upon the navigable waters [and] adjoining shorelines” is liable for the removal costs and damages resulting from the discharge. A number of BP PLC entities, along with Transocean Ltd., which operated the rig, and Halliburton Co., which was tasked with stopping the oil spill, were sued for Deepwater’s damages under the act. In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, MDL No. 2179, No. 10-me-2179 (E.D. La.).
On August 10, 2010, to eliminate duplicative discovery and prevent inconsistent pretrial rulings, the U.S. Judicial Panel on Multidistrict Litigation consolidated 77 actions pending in Alabama, Florida, Louisiana, Mississippi and Texas before Judge Carl Barbier in the U.S. District Court for the Eastern District of Louisiana. Barbier chose 15 attorneys to form the Plaintiffs’ Steering Committee. Kirkland & Ellis partners Richard Godfrey and J. Andrew Langan, and Robert Brock, a partner at Covington & Burling, lead the defense team, which offered “no comment” for this report.
Both sides cooperated to produce documents and write the majority of the pretrial order about document production and electronic data, said Magistrate Judge Sally Shushan. After 18 months of discussions, days before the first phase of the trial was scheduled to begin, the committee negotiated an agreement with BP that, among other things, included an estimated $7.8 billion settlement fund for economic loss and medical claims and a waiver of Oil Pollution Act requirements. With the waiver, individuals and nonmunicipal or governmental entities go directly to a website supervised by the Eastern District of Louisiana to file claims against BP. “There’s a strong presumption of entitlement written into the settlement terms,” said Jeffrey Breit, a partner at Virginia Beach, Va.-based personal injury firm Breit Drescher Imprevento & Walker and a member of the steering committee.
“The one thing we didn’t want to happen was to have this turn into another Exxon Valdez,” Shushan said. “We want to get this case resolved, get people who settled their cases paid, and keep it organized and ongoing.” With fast-tracking, the steering committee needed to review 83 million pages of reports, pleadings, depositions, etc. Days after its first strategy meeting in October 2010, documents began pouring in. “Government agencies were generating reports of 400 to 500 pages, and pleadings were arriving by the bucketful,” Breit said.
John Roy, an associate at Domengeaux, Wright, Roy & Edwards, managed the steering committee’s review team, with “roughly 300 attorneys from 91 different firms from around the country,” said Breit, and 40 to 50 contract attorneys assisting with document review, deposition, trial preparation and other tasks.
The plaintiffs used Washington-based iConect Development LLC’s nXT software to cull multiple terabytes of data. BP provided plaintiffs with all files from employees who dealt with cement, each given a Bates number and stored on an external hard drive. The iConect team then catalogued the electronically stored information and filtered out documents that didn’t match basic criteria, such as date ranges.
After the initial cull, attorneys were given batches of 500 to 1,000 pages of files to determine relevant keywords to further cull the ESI. Reviewers tagged files either as irrelevant or hot, Roy said; a second team reviewed the first team’s work. While this significantly thinned out files, the team still faced thousands of documents to manually review. So the steering committee turned to Apple iPad tablets. It was a “game-changer,” Breit said.
The first-generation iPad had been released a few weeks before the Deepwater explosion, and several members of the steering committee were using the tablet to check email, access the web and take notes. Breit did not initially view the iPad as a litigation tool. Although he observed that the tablet was effective for reading PDF files, the iPad was only as useful as its apps.
FINDING THE RIGHT APPS
Breit tested GoodReader, a PDF reader and organizing tool, but it did not easily mesh with the team’s needs. Then Miami-based Lit Software LLC launched TrialPad. Breit saw he could use the $89 app to organize the BP litigation. He developed a tab system where a complaint would be filed in the tab “Pleadings,” which would also store the answer, interrogatories, requests for production and witness information, “all broken down into a tree,” Breit said. But he didn’t know how to set up TrialPad in a way that would enable everyone on the litigation team to access his file system until he talked to Ian O’Flaherty, Lit Software’s chief software architect. O’Flaherty said Breit could pair TrialPad with Dropbox, a low-cost online web-based service, to allow his team access to files stored on Dropbox directly from an app like TrialPad.
Breit was impressed with how easily TrialPad and Dropbox digested large volumes of data, such as a 500-page PDF report that included slides, photos and other ancillary materials. TrialPad also included tools that helped Breit zoom, highlight and handwrite notes on PDF files. He could email a paragraph, a page or a document to others on the trial team.
Breit quickly convinced the steering committee participants to buy iPads to implement his system. They all bought iPads with 3G and Wi-Fi support, but soon found that the TrialPad-Dropbox combination was not an airtight method for organizing the MDL. The steering committee couldn’t risk storing trial strategy, such as to-do lists, on Dropbox because of potential security breaches. Instead, the team sent sensitive work product via secure email that could be opened and reviewed in the TrialPad app.
In February 2011, the steering committee began to review more than 300 depositions of defense witnesses that ran approximately 800 pages per transcript. The plaintiffs needed to glean from the transcripts information pertinent to trial issues to build their case. But TrialPad was not designed to edit documents. The task of dissecting relevant information from each deposition PDF and then cutting and pasting these pieces together into another PDF was laborious. The team’s paralegals tried using Phoenix-based inData Corp.’s TrialDirector, but quickly met the software’s capacity limit.
Then in January 2012, Lit Software released TranscriptPad, an app designed to edit text and .asc files of depositions. It helped the steering committee members cut, paste, highlight and tag deposition content, and then consolidate that information into a PDF that could be imported into TrialPad. This allowed the plaintiffs to, for example, “search TrialPad for instances where the blowout preventer is talked about among…witnesses. We were able to put it all in a great organizational way,” said Breit.
Apps took the iPad through Deepwater. As of September 11, 2012, $31 million of settlement monies has been distributed, Shushan said. The status of the cleanup efforts is hard to gauge because “we’re not getting to the natural resources damages part of the case until Phase 3,” she said, which is expected to be tried in May or June 2013.
Robyn Weisman (email@example.com) is a freelance reporter based in Los Angeles. This article originally appeared in NLJ affiliate Law Technology News.