E-Discovery Law a Boon for Lawyers

New regulations governing the storage and management of electronic data that might be needed in federal court actions has an increasing number of organization turning to outside counsel for help, according to a new study.

An annual survey about litigation matters asked 303 corporate lawyers about the impact of the e-discovery law that went into effect last year.

The e-discovery law is an amendment to the Federal Rules of Civil Procedure related to finding and managing electronically stored information that might be relevant in a legal dispute in federal court. The new law requires processes and technologies to be in place to do e-discovery and to stop any automated or regular purging of relevant electronically stored information at the first sign that a company might be a party to a lawsuit, even before the suit is filed. The law also requires opposing parties to discuss e-discovery issues within 120 days of a lawsuit's filing.

The fourth annual "Litigation Trends Survey Findings" conducted by Fulbright & Jaworski L.L.P, a global law firm based in Austin, Texas, found that corporate lawyers -- over two-thirds based in the United States and the rest mainly in Britain -- cited a big jump in use of outside vendors and outside law firms specializing in the e-discovery field. The industry sectors primarily represented are financial services, technology/communications, manufacturing, healthcare, energy and retail.

Whereas 37 percent of the in-house corporate lawyers in the United States had used outside e-discovery vendors last year to help with e-discovery, that number jumped to 51 percent this year. With U.K.-based lawyers, that number jumped from 8 percent in 2006 to 71 percent this year. The need to call on an outside law firm with "special technical expertise in e-discovery issues" rose from 26 percent last year to 30 percent for the U.S.

corporations represented, and 17 percent to 32 percent for the U.K. companies. As a whole, 17 percent of those answering the survey said they have retained or are considering retaining national or regional counsel specifically for e-discovery issues that arise.

The Fulbright & Jaworksi survey also asked the 303 lawyers about their firm's corporate communications policies.

According to the survey, 54 percent allow instant messaging; 24 percent allow attaching documents; 31 percent log or retain instant messaging; 40 percent retain voice mail; 40 percent have technology to send voice mail to others via e-mail; 72 percent allow access to the company network from home; 48 percent allow use of outside e-mail accounts from company computers; and 40 percent have a chief privacy officer.

There wasn't uniform sentiment on whether the new federal rules on e-discovery make this aspect of federal litigation more or less difficult. Twenty sever percent of the U.S. companies said the new rules had made litigation more difficult, but 18 percent believed they actually made the process somewhat easier. More than 60 percent of both the U.S. and U.K. groups reported little change.

The survey also covered other topics, including patents and class-action lawsuits, international litigation and arbitration.

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