Thursday, October 28, 2010

Guest article:Why Outsourcing E-discovery should be part of your business strategy

Outsourcing e-discovery and information management services is no longer something businesses can ignore. E-discovery and information management services are rapidly becoming critical, highly-discussed topics in board meetings across the globe. Developing a strategy for outsourcing them is a key to the success of today’s modern, Internet-enabled enterprises.

As the world begins to see more and more bogus tort claims, frivolous lawsuits, and increasing amounts of civil litigation in general, the process of discovery, or the process of obtaining documents, interrogations, and other evidence from opposing parties before trial, during such litigation proceedings becomes increasingly cumbersome and costly to obtain. The discovery process was difficult to begin with before the Internet-era; but now with the introduction of massive amounts of computer-based data such as emails, instant messages, and other intangible data stored in electronic format the discovery process becomes even more difficult to complete. This new form of discovery, known as e-discovery, is not just more complicated than its traditional predecessor due to the existence of larger amounts of data in formats far less tangible than paper.

The e-discovery process is further hindered due to a larger array of personnel involved in the process of discovering relevant, electronically-based data. Lawyers and forensic investigators, who are unfamiliar with the technological aspects of creating, maintaining, preserving, and deleting electronically-based data, must cooperate during the e-discovery process with IT professionals (IT managers, database administrators, network administrators, etc.), all of whom are generally unfamiliar with the law. This clash often results in delays, misunderstandings, or, even worse, data corruption or even outright data loss.

The tasks of managing a company’s data and, in the event civil litigation arises, e-discovery are peripheral tasks not directly related the company’s core goals. Just like the duties involved with payroll processing have been successfully delegated to outside specialist firms, outsourcing e-discovery and information management services are gradually taking hold amongst businesses worldwide. Despite fears from the opposition, outsourcing these tasks is proven to be efficient, cost-effective, and safe.

Firms specializing in e-discovery outsourcing have professional staff trained in tasks specific to the discovery process and how it is conducted in today’s electronic document era. Outsourcing these tasks frees corporate attorneys from these burdens so that they can focus on tasks more suited to them. Instead of wasting time on the “grunt work” of ploughing through boxes of digital tape backups or data mining through hundreds of gigabytes of archived receipts, attorneys can focus more on clients and business development efforts.

When a corporation’s legal department teams up with an e-discovery outsourcing company located in another country, the potential to speed up the process and meet previously impossible deadlines increases dramatically, as attorneys can take advantage of time differences between their offices and that of the outsourcing company in order to continuously work on a project non-stop, 24 hours a day, seven days a week.

Outsourcing e-discovery helps prevent companies from getting “overcharged and overlawyered” by unscrupulous attorneys and con artists alike who prey upon management fears that pursuing a proper legal defence will always be more expensive than a settlement. With outsourcing e-discovery becoming a viable, cost-efficient alternative to expensive settlements, companies can re-invest the money otherwise lost on these settlements into pursuing their core goals. This is a win-win situation for the company, their customers, and their containing economies as well.

Outsourcing information management services benefits a company in similar and complementary ways, in the sense that an outsource firm specializing in information management can not only increase efficiency in handling a firm’s data, but will help said firm’s attorneys be more effective with retrieving and processing discoverable electronic data.

Opponents to such outsourcing claim it is unprofessional and unethical to allow so-called “non-lawyers” to practice law. They claim that outsourcing dilutes the quality of discoverable documents as the task of document identification, preservation, and collection are not conducted by a company’s own legal staff. Such claims are simply untrue. Allowing an outsourcing company to handle specific tasks under guidance is no different in this respect than hiring paralegals or law student apprentices. It has even been ruled that outsourcing is acceptable as long as an attorney properly supervises their work. As with anything that an attorney must delegate to others, he or she must take caution and maintain an awareness for issues relating e-document custody and control, privilege and confidentiality of e-documents, e-document security, and other various legal and ethical considerations.

Regardless of the opposition, outsourcing of e-discovery and information management services is becoming increasingly popular. As it becomes more and more difficult to compete against one’s competitors, finding a way to increase efficiency and reduce costs anyway possible is a goal that is here to stay. Outsourcing tasks that are not directly related to an enterprise’s core pursuits has proven effective for decades in matters such as payroll processing, supply chain management, and even IT matters. The “Electronic Revolution” has not only allowed this to happen but has encouraged its growth amongst companies in every industry imaginable. It’s not hard to see it was only a matter of time before outsourcing arrived in the legal department.

Steven Rosen is a freelance writer and blogger for Ledjit Consulting, a Montreal-based e-discovery and information management consulting firm.