Litigation Support Services
Generically, Litigation Support services refers to all activities designed to prepare lawyers, law firms and legal departments to litigate a case. More specifically, these services include project management of client ediscovery as it moves from identification and collection to review, production and exhibiting during deps, trials.
With the looming changes to the Federal Rules of Evidence, it becomes more apparent that litigators will need more technical help with their cases. As regards doc retentions, the courts will look to see if “good faith” vs. malignant destruction resulted in loss of ediscovery. Litigators can win the case on spoliation issues and not the law. The plaintiff can call into question the quality and thoroughness of the defendant’s discovery, in conjuction with an attack on the firm’s methodology for identification, collection and review (if it gets that far) and win major points with the court, if not the case.
These rules go into effect 12/01 for the Federal courts and 01/01 in most states.
OK, so how do these changes effect litigation support services? Litigation Support professionals, with a background in IT and the law are in a unique position to provide validation and consultative help as regards the following services and stages of the case:
1. Compliance issues for firm and client;
The law firm should help get their corporate clients ready to identify, collect and produce. Ideally the retention policy is one that has buy-in from all the necessary parties (IT, legal, records management, HR) and has C-level backing. When a matter hits, identification and even sampling is as non-disruptive as possible for the corporation. If Litigation Support services includes project managing the transition of data from client to counsel for review (via vendor), the best retention policy is one which includes validation from the firm’s Litigation Support Department.
Hopefully, there is also a protocol inside the firm that outlines how to identify, collect and process, via litigation support goods and services, throughout the case lifecycle. This protocol will go nicely with the review strategy…
2. Review and Production - During 26(f)
During the 26(f) is your chance to establish an agreed upon approach toward the search strategy. Now is when the prior planning with lit support comes in handy. The litigators know what to search for and how they wish to search. This means they can try and limit the scope of discovery and agree to a search methodology which neither side can later contest.
Visualize how you will want to use these materials at depositions, hearings and trials. What types of software you will potentially use can impact how you collect and preserve. Agreed upon naming and identification rules for all files, whether a TIF or “native,” directly impacts which litigation support services to employ and technological requirements. Other considerations are simpler, such as production formats, e.g. CDs vs. DVDs and hard drives. This is your chance to make sure the other side produces what you want exactly as you need it. It is also your chance to make certain your firm can produce to oppossing in the formats they require. Of course, if they do not specify a preference, they may not like what they receive, e.g. boxes of paper vs. CDs.
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The Litigation Support Department comes across a lot of litigation support goods and services providers. Certainly more than the average litigator, due to fact that they handle more cases than a single litigator and subsequently have a greater chance to become familiar with the various litigation support companies in the marketplace. Litigators need to take advantage of this knowledge to the benefit of both case and client.