Electronic data discovery (e-discovery) and the management of electronically stored information (ESI) are becoming a requirement of any litigation process. Frequently, these involve such nonlegal e-discovery tasks as conducting forensic investigations and collecting ESI. All too often these nonlegal tasks divert attorneys from their core legal practices, such as resolving complex disputes and assisting organizations to mitigate risks. Attorneys and corporate law departments trying to meet the demands of litigation may consider outsourcing litigation support tasks for a number of reasons.
Law firms and corporate law departments engage in the practice of law, including litigation. While some litigation support departments in very large firms are staffed with lawyers who render actual legal services, such as document review, most do not. Much of the services provided by litigation support departments are nonlegal services performed by technicians who collect and process ESI and provide forensic analysis, storage, database creation, hosting, software configuration, management and nonlegal expert advice. Much of e-discovery involves computer-related technical services, which is the core competency of e-discovery vendors.
Nonlegal e-discovery services are difficult to perform correctly and require significant skills and training. ESI processing and forensic investigations are technical; it is easy to make mistakes. In the age of information and rapid technology advancements, the only norm is constant change.
Litigation support departments are expensive to set up and operate, requiring a large initial investment for expensive, state-of-the-art hardware and software. Specialized employees are costly, as well, and need extensive training to use the necessary tools. Outsourcing is a cost-effective response to the demands of constantly changing technology. Further, using a single vendor for all or most litigation matters also can save costs. This will allow attorneys to leverage buying power and negotiate a low rate for clients who use that vendor.
Finally, errors are inherent in the complex, nonlegal e-discovery services that any litigation support department renders. The exposure is hard to quantify. What would be the damages for an accidental loss or disclosure of e-discovery data? (Think of the terabytes of data you are holding right now. How much of that is confidential?) Mistakes can happen, especially when a firm is operating outside of its core competency. Are errors made in nonlegal services insured or insurable?