As the pace and breadth of litigation continues to expand, intense effort is necessary to manage electronically stored information (ESI) and physical documents; to preserve, collect, cull, review, and produce records. For many legal teams with limited resources in staff and technology, litigation support services have become the go-to solution. Some litigation support services providers offer managed services or professional services (or both) to support corporate in-house counsel. There are differences between the two services and either can be beneficial in supporting firms.
Managed Services — is outsourcing e-discovery activities as a way to reduce costs and improve organizational efficiency, allowing departments to focus on the roles they’re uniquely able to fulfill. With Managed Services, a service provider runs ESI processing for legal teams using technology and equipment appropriate to their needs… either behind their firewall, or behind the service provider firewall.
Managed Services offer numerous benefits, including:
1. Cost Effectiveness
Managed Services streamline the progression of e-discovery and early case assessment by speeding up the process from days to hours, enabling the legal team to focus on the core of the case. Instead of spending money on equipment and software that rapidly becomes outdated, Managed Services build and maintain state-of-the-art technology and equipment, and supply the professionals to run it. This can lower in-house management and labor costs, and help reduce time spent on document review.
2. Workflow Management
Managed Services – from data forensics to data processing and analytics– can be customized on a case-by-case basis. And given how unpredictable, intricate, and protracted e-discovery matters can be, it’s important to quickly identify and resolve any in-house procedural gaps that could expose a company to various risks.
Professional Services — is where aspects (some or all) of a client’s e-discovery process are maintained by a service provider, who takes on the role of project manager and/or consultant in managing and organizing the data. The Professional Services project manager and his/her team manage most of the details associated with preservation, legal holds, interviews, document/data collection, analysis, processing, review, and productions.
Professional Services offer complementary benefits to Managed Services, which include:
1. Project Managers
One of the leading benefits of using Professional Services is that it provides a project manager who works with the client to determine the ideal approach for their e-discovery cases/projects, and then monitors and evaluates the execution. The project manager expertly crafts a plan that can be customized to changing requirements or developments. The project manager manages the team assigned to the project, delegates tasks, and manages deadline compliance while providing timely updates to counsel. Once the project is complete, the project manager provides the client with a post-engagement evaluation.
2. Supplementary Services
The Professional Services project manager can also arrange for expert witnesses, court reporting, and transcribing services during depositions and testimony.
Both managed services and professional services have similar, yet complementary benefits for law firms and in-house counsel. They can blend well and work together to reduce in-house costs and risk exposure while managing workflow and supplementary services. With the rapid pace of technology advancements, constant investment in equipment maintenance and software development is required. Utilizing experts in both managed and professional services to protect the assets of the law firm or corporate legal department, adds to a more stable bottom line.
An increasing number of litigation teams are turning toward managed services as a way to handle the more complex facets of the litigation process. By choosing an experienced litigation support services provider, legal teams are able to focus on the core of the case, rather than spending time managing paperwork. However, as with most business tools, there are both pros and cons to the managed litigation support services model.
The Essence of Provider Services
When using managed services, the details of running your project will be turned over to your provider. This allows them to have both control and accountability over the results of that case. Since this is their full-time occupation, clients can rest assured that the project management will be as efficient as possible, saving countless work hours (and the expense of them) over attempting to keep track of the data themselves.
Litigation support is unique in that so many aspects of building a case are included by support service vendors. Most vendors will offer a range of options, from evidence collection and organization all the way up to computer forensics. Clients are able to pick and choose which services will best support the needs of any particular case, and the entire process is streamlined from start to finish.
Although a managed services model is extremely efficient and cost-effective, it is not a perfect system. In fact, the very thing that makes litigation support so helpful is the same thing that makes some clients nervous: it’s a lot of responsibility all in one place. Granting control over the project details to the vendor rather than maintaining internal tabs on progress requires a tremendous amount of trust. It’s vital to ensure that your service provider is capable, professional, and completely trustworthy before proceeding. Ending up with a litigation support team which is disorganized or overwhelmed by the workload you’ve offered can result in a huge waste of time and money, and may even cost you the case.
Even if your vendors are fully capable, this business model simply won’t work unless the client is willing to trust the vendor’s judgment completely, so managed litigation support services may not be ideal for anyone who is uncomfortable relinquishing control over their case.
Deciding What’s Right for You
Managed litigation support services, when used correctly, can be a tremendous benefit to any case. However, it does require a lot of trust between both parties, as well as excellent and ongoing communication. If you have the right attitude and are willing to let your vendor handle most of the fine points involved with your case, managed services could be the perfect solution for you.
According to the American Bar Association, a mere 10% of all documents created since 1999 are not digitally produced; the vast majority of existing records are now in some type of digital format. Deleting digital documents or failing to retrieve digital records when needed can increase a company’s risk of legal liability.
To minimize exposure to risk, many companies have employed a data retention process to aid in electronic discovery and computer forensics. Although both areas encompass the preservation and use of digital data, there are key differences between electronic discovery and digital forensics.
The Data Collection Process
Ediscovery is summarized as the process of collecting, preparing, reviewing, interpreting and producing electronic documents from hard disks and other forms of storage. During litigation, eDiscovery firms may be subpoenaed to give testimony on the methods a company used to collect the data. On the other hand, computer forensics involves the use of a forensic expert to protect data integrity and to bring forth the data stored on a hard disk. During discovery, forensic experts use particular software applications and may call forth analysts to provide their testimony as expert witnesses.
Reviewing and Interpreting Data
Another significant difference between both disciplines is the method used to analyze the data. Ediscovery firms typically do not analyze the data they collect. Additionally, they usually do not clarify the intent of a computer user and they generally don’t provide clients with legal advice. Ediscovery is the process of gathering all of the data and supplying the client’s legal counsel with the data and relevant tools, then allowing the client’s legal counsel to perform their own thorough review.
Forensic experts assist legal teams with producing evidence for their case. Forensic experts can also partner with attorneys to pinpoint keywords related to the case, and then cross-reference those keywords against the collected data. Forensic experts can discover encrypted information such as passwords, and they can access email messages and reassemble an Internet user’s history. An analyst will not only search for intact records, but will scan for deleted records and file fragments to attempt full recovery of the files needed to support or defend the claim.
The Roles Served by Both Disciplines
Unlike digital forensics, eDiscovery is not used to analyze or investigate data and its uses. It serves to gather and organize information that everyone can view, access and duplicate. If that data has been deleted or is unseen by the computer’s operating system, that information could possibly be retrieved with digital forensics, but not electronic discovery.
In the eDiscovery process, a computer forensic expert will need to be called upon at some point or another. An example of such a matter would be a company receiving a set of files on a hard drive. Once received, it is realized that the size of the data on the drive is less than what was anticipated and recorded. After further review, an employee is suspected of intentionally destroying information on the hard drive. A forensic specialist will be needed to determine if the claim of intentional destruction is true, and if so, how the data was destroyed by the user.
Although eDiscovery and digital forensics are very similar in nature, the key differences revolve around how the data is collected and presented, how it is reviewed and interpreted, how much data is involved, and whether professionals are needed to provide forensic data recovery. Forensics gather, preserve and restore data, and Ediscovery processes and delivers the data to the appropriate parties. Choosing a litigation support company with experience in both disciplines is crucial—technology leaders such as Teris.
Ediscovery has become a necessity within the legal profession rather than an occasional novelty. The powerful capabilities of electronic discovery are very impressive, and can benefit your company even more so by focusing on several key qualities.
1. Powerful Search Function
Any electronic discovery tool must be able to collect all the data you could need as evidence, and also have comprehensive search capabilities. This includes searching not only active files but archived data as well, and by multiple factors: concepts as well as words or phrases. Results should be delivered quickly and in an easily understandable format.
Searching data isn’t enough; you also need a system for keeping all that gathered information organized and easily accessible. Make sure your ediscovery tool is capable of indexing files and documents, or create a dedicated database from scratch. File conversion capability is a necessary part of this process.
Your platform must be able to handle large amounts of data. Very often in data mining, one gem uncovered leads to entirely new trails. A low-capacity system will quickly become irrelevant and frustrating.
The electronic discovery service provider you choose should also be an economical choice. The stronger your return on investment, the less money is tied up in the discovery process which may be better allocated elsewhere.
The more user-friendly a program is, the more positively it will impact your ROI. Although you want a comprehensive search and analysis potential, you also want it quickly and with a minimum of specialized training.
Usability should not, however, come at the cost of functionality. Your ediscovery has to be able to manage complex projects efficiently, including data from a variety of sources: spreadsheets and documents as well as emails.
Any electronic discovery software used must be compatible with other software your legal team may already be using, so data conversion capability is a must. Data should be able to be converted into other formats easily, including images or text.
Compatibility of your discovery software is essential not only with other litigation software you may be using but also with your legal team. Any program used has to be in alignment with the requirements of you and your staff. This includes data format, general manageability, and other user-end qualities which are necessary to you.
9. Preservation of Data Integrity
If the integrity of your data is called into question, all electronic discovery efforts will be wasted effort. Your ediscovery tool must ensure total preservation of all original data.
The Big Picture
Although naming specifics is easy, it’s important to remember to look at the big picture as well. A good ediscovery tool will enhance defensibility, accelerate case assessment and contribute to a significant reduction in review workload. Investigations should be completed more quickly, and data must be collected and searchable, without its integrity being called into question. These qualities, plus compatibility with your existing team and methods, are what ultimately define the ideal ediscovery tool.