This is a guest article from Andrew Carraway, Esquire, Attorney with Lowers & Associates
In our current fast-paced business environment, it is getting harder and harder for a company to solely rely on its in-house staff to resolve legal disputes and conduct the necessary due diligence reviews of customers and suppliers. Out sourcing and specialized consultants have become necessities. It is now likely that any company that has retained the services of a law firm will find the category of “litigation support” featured prominently on invoices for services provided by the law firm. In this short article, we will explore what the concept of “litigation support” entails and the necessity for law firms and other businesses to utilize these services.
Litigation support has been defined as “the process of providing consultation and support services to attorneys or others in regard to current and pending cases.”[1] Litigation support services can range from legal research, to the valuation of property, to determining the extent of damages incurred in an accident or injury, and perhaps forensic accounting services to trace out fraud, waste, and abuse in financial activities. As our world becomes more complex and information transforms from the written page to digital material maintained on a server or in a cloud, more and more litigation support is being focused on digital formats, coining a new term E-Discovery. E-Discovery refers to the discovery of information in civil litigation which deals with the exchange of information in electronic format, i.e. electronically stored information.[2] E-Discovery is frequently utilized by law firm and business support staff, outsourced by the firm to specialty groups whose sole role is to extract and analyze evidence supplied by attorneys using digital forensic procedures which are incorporated into a document review format.[3]
The Expanding Role of E-Discovery
The use of E-Discovery is considered outside the realm of what many attorneys are exposed to in law school and presents a challenge due to its intangible form, volume, and complexities for many attorneys not proficient with computer technology. Most data that is stored in an electronic format is now subject to a discovery order under the Federal Rules of Civil Procedure.[4] Historically, this data has included company and perhaps personal email, office documentation, as well as possibly photos, video, databases, and PDF files or TIFF images. Voicemail has even been held subject to discovery in certain situations. It has been noted that E-discovery now takes place in almost every case, whether it is needed or not, introducing complications and costs related to the storage and processing of sometimes very large datasets.[5]
Social Media and Litigation Support
Further, one rarely goes a day without seeing data on their computer or smart phone from at least one of the following social media outlets: Facebook, Twitter, YouTube, Linkedin, and MySpace. Today, social media sites have gone from being personal “fun time” activities to an important aspect of many company operations. One of the most important issues that has recently come into play in civil litigation is the role social media plays under the Federal Rules of Civil Procedure section 26(b)[6]. This section allows liberal discovery holding that “any non-privileged matter that is relevant to any party’s claim or defense” is subject to Federal discovery regulations. The key case for this issue is Equal Employment Opportunity Commission v. Simply Storage Management. In this 2010 case, the court held that the content of social media networking sites is not shielded from discovery simply because the content is “locked” from public view or is “private.”[7] Since potentially discoverable information is now generated and stored in social media sites, a review of social media activity is now a key component of many litigation support groups.
Investigative Litigation Support
Many of even the largest law firms rely on outside consultants for expert investigative litigation support in order to win cases for their corporate clients. Investigative firms can identify witnesses and initiate background checks on all parties to the litigation. They can conduct asset searches to determine whether the proposed litigation will be able to collect on a judgment, should one be awarded. They can use forensic accountants to analyze business transactions and can often draw upon a wide network of Federal and State law enforcement agencies with whom the consultants have working or former employment relationships.[8]
In-House or Outsource?
Often times, firms must decide whether to conduct their litigation support activities with in-house personnel or to transfer this function to specialty consulting firms like Lowers & Associates (L&A). Larger law firms may have the revenues and personnel to conduct many litigation support activities, but even large firms find that from time to time certain litigation support activities must be conducted by specialty firms. Take, for example, a recent case presented to L&A. A potential buyer of over two hundred ancient Chinese jade figures asked that we view the articles, conduct due diligence on their origin, insure that the articles were not protected antiquities, and retain the services of a certified expert who could verify that each of the jade pieces was genuine. This was a legitimate concern to the potential buyer, due to the recent exposure of “fake” jade figures manufactured in China that looked to even many art experts to be legitimate items. While this project appears to fall outside of the more common definitions of “litigation support”, more and more frequently companies are engaging in this type of review as a means of avoiding litigation and verifying a business transaction as legitimate prior to entering into it.
Litigation Support Can Be Far-Reaching
Litigation support is not limited to new technologies like digital data storage. Lowers & Associates provides a number of litigation support activities for its clients including civil litigation support, white collar crime investigation, the defense of negligence claims, criminal case support, directors and officers insurance claims, crime and fidelity insurance claims, embezzlement and theft prosecution, E-commerce crime, and art and precious metals review and analysis, among others. Our staff of former Federal attorneys and law enforcement personnel has a wide variety of expertise in many key areas. Contact us if you have any needs in this area and we will be glad to work with you as your litigation support partner.
[1] www.wisegeek.com- What is Litigation Support?
[2] www.Wikipedia.org- Electronic Discovery
[3] Ibid
[4] Federal Rules of Civil Procedure, 18 U.S. Code. Part V
[5] Law Practice Today—The Case for Outsourcing Investigation Litigation Support by Thomas D. Thacher, II. April, 2005 American Bar Journal.
[6] Ibid.
[7] Inside Counsel—Litigation: The Rises and Opportunities of Social Media by Michael Lynch & Lystra Batchoo, September 20, 2012.
[8] Ibid.
