The electronic discovery (“e-discovery”) market is predicted to grow 20 percent in the next year and exceed $4.6 billion by 2010, according to a recent e-discovery survey. The explosive growth of electronically stored information (ESI) has increased the cost and complexity of the e-discovery process and posed new challenges to clients. In response to the growing demand for e-discovery services, law firms are expanding the breadth of their e-discovery capabilities to meet client needs.
Law firms with expertise in the booming e-discovery area will be in a position to capitalize on it. Below are several ways that law firms can help clients mitigate risk, navigate changing e-discovery laws and manage the e-discovery process.
- Records-Retention Protocols. Managing volumes of ESI begins with the creation of an effective records-management policy. Law firms can assist in designing records-retention protocols that comply with legal and regulatory retention mandates and meet the needs of the client organization.
- Federal Rules Compliance. Recent amendments to the Federal Rules of Civil Procedure have complicated the e-discovery process. These rules place an onerous duty upon organizations to preserve and produce relevant evidence that exists in electronic form, such as e-mails, voice mails and CDs. As judicial tolerance declines, the failure to properly preserve and produce ESI in litigation can result in heavy sanctions and other consequences. Law firms can help clients understand and comply with e-discovery rules, discovery standards and relevant case law.
- E-Discovery Teams. Attorneys and paralegals can serve on interdisciplinary e-discovery teams, partnering with IT, vendors and records-management personnel in order to manage e-discovery issues. The team can help develop processes and best practices for the management of electronic data.
- Data Map Creation. The legal team can help assess a client’s ESI and create a data map of its IT architecture, outlining the structure and location of an organization’s ESI. Data maps can facilitate the implementation of litigation holds as well as the collection, review and production of ESI and the identification of key witnesses in the event of litigation.
- Technology Expertise. Law firms can leverage technology to help clients streamline workloads and mitigate the risks and expense associated with e-discovery. Attorneys also can help to identify and implement the appropriate technology tools and manage vendor relationships on behalf of the client.
- Litigation Readiness. Pending claims and lawsuits trigger a legal duty to preserve relevant information in anticipation of litigation. Law firms can help clients develop a strategy for preserving relevant data and complying with preservation orders. Organizations that implement a litigation-readiness plan can significantly minimize the costs of e-discovery and reduce response time in the event of litigation.
- Litigation Holds. A litigation hold is a type of preservation order that suspends an organization’s records retention/destruction protocols in order to preserve potentially relevant information. Law firms can help organizations draft, implement, disseminate and comply with litigation holds and preservation orders.
- Data Review. The review stage of e-discovery requires legal expertise to determine relevance, privilege, confidentially and responsiveness of data produced in litigation. This labor-intensive process often requires large attorney/paralegal teams and represents the most expensive stage of the e-discovery process. Attorneys can help develop effective keyword phrases to search electronic databases for responsive documents and streamline the review process to avoid mistakes and minimize expense.
- Global Management. As international e-discovery gains momentum, countries around the world, including Canada, England and Australia, are enacting laws governing e-discovery. Organizations with global operations face the challenging task of navigating multi-jurisdictional e-discovery and privacy laws. Law firms can assist multi-national clients with understanding e-discovery issues from a global perspective.