|Traditionally, law firms were not only able to do most of the litigation support functions in-house, but had to do many of them. Document management functions done through vendors were often very expensive, cost prohibitive, and except for the largest cases, legal teams did not have the budget for vendor assistance, resorting to managing documents in-house.
Today, ESI (electronically stored information) is the biggest challenge in litigation practice. All sizes of cases can have ESI needs and challenges and we must meet and overcome those challenges. Often this requires the help of various types of vendors who have resources and skills most law firm personnel do not possess.
Vendors are often called in to help us manage documents and collect ESI from various sources including: email, electronic document storage, cloud storage, and social media sites to name a few. The collection and management of this ESI can be enhanced through the use of knowledgeable vendors. Vendors can provide technological expertise and programs that assist us in collecting data needed for our cases. Due to the technological advances in the past decade, using vendors to help collect and manage ESI is no longer cost prohibitive even for small cases. In fact, vendors can help expedite ESI management and reduce the cost of document collection and management.
Even the smallest case can have a need for ESI assistance from a vendor. Often the first items of discovery are information from smartphones and social media. Both of these areas require specialized expertise and software programs and the qualifications to testify to the accuracy of the collection.
In addition to the task of physically collecting ESI information, legal teams will often need to be able to demonstrate that the information was collected appropriately in order to use it as evidence in cases as well as to avoid objections that the collected data is incorrect, inaccurate, damaged, not the data asked for, incomplete, etc. These considerations often require expert testimony or affidavits from experts – again requiring the legal team to hire appropriately qualified vendors.
The practical considerations of ESI collection and management are only part of the discovery equation. Over the past 5-10 years both Federal and State Courts implemented Rules and procedures to manage both the cost of collection of ESI and the use of it in ligation. Some of the more recent Rules include requirements for assessment of ESI during the first few months after filing a lawsuit and the filing of a joint plan with the Court on how ESI for the case will be handled. The courts are very sensitive to the cost of collection and management of ESI and have put rules in place to make sure those costs are appropriate in relation to the damages and claims of each case (proportionality). The courts can and often will sanction litigants for spoliation of ESI and other violations of ESI management set forth in some of the new Rules.
The new Rules require legal teams to analyze the ESI needs of their case early on and work out a plan for ESI collection and management. Vendors can assist in this process if the legal teams do not have qualified ESI management personnel working with them.
ESI management and collection is a consideration in almost every case. Expertise provided by ESI vendors can assist the legal teams in planning for the collection and management of ESI as well as helping the legal teams meet their obligations to the courts in submitting ESI management plans. Vendors can also provide experts when disputes over the handling of ESI arise. Why work with a vendor? The right vendor can make our lives easier, help us streamline our ESI discovery and management process, and provide expertise when needed to make sure this process is defensible.