- ABA Groups
- Resources for Lawyers
- Career Center
- About Us
If you’re bold enough to send electronic evidence review offshore, then exercise an extreme degree of due diligence, grill the offshore firm about security, and document every step you take.
Investigating Training and SecurityFor an example of what you should look for in an outsourcing firm, we turned to CPA Global, a well-respected LPO firm that has specialized in intellectual property outsourcing since 1969 and starting offering document review and evidence organization services a couple of years ago. Thanks to Brandon Daniels and Stephen Kong of CPA Global for answering our questions about their processes.According to Daniels, CPA Global has over 400 associates in India, about 30 of whom are dedicated to document review. CPA uses only attorneys, not paralegals, although that is not true of all LPO firms. Sometimes, subject matter specialists who are not lawyers are also used. Each lawyer at CPA receives 200 hours of initial training and continuing legal education thereafter, as well as training in the handling of special data related to HIPAA, SOX, GLB, FERPA and the like. CPA’s process for screening applicants is rigorous, Daniels reports, so its acceptance rate is only 6 percent.Daniels also says that currently most clients ask for hourly billing (not surprising in the legal field, of course). Interestingly, though, he’s seeing a drift toward per-document and fixed-fee arrangements for processing, hosting and reviewing.So what should a law firm get for those dollars in terms of security? Keep in mind that, especially owing to still-tenuous ethics questions, it’s critical to consider the kind of physical and data security that might be necessary to outsource EDD abroad. These are the types of questions to ask prospective providers:
Considering Murky Legal IssuesAnd now for some other issues to consider. One involves last year’s so-called Newman case, which attracted a lot of attention and was widely regarded as an anti-offshoring case. Here’s the background. On May 7, 2008, the Maryland law firm Newman McIntosh & Hennessey filed a complaint for declaratory judgment and injunctive relief in the U.S. District Court for the District of Columbia against President Bush, Indian outsourcing firm Acumen Legal Services and additional parties. The complaint sought guidance on whether transferring e-evidence to a litigation support service in India waives Fourth Amendment protections and constitutes waiving attorney-client privilege. Remember: The Fourth Amendment does not traditionally protect foreign nationals when the government is engaged in surveillance of electronic data submitted to foreign nationals. So, the Newman firm sought injunctive relief and declaratory judgment stating whether client data transmitted loses its Fourth Amendment protection when sent overseas; whether a law firm needs to ask for client permission before sending the information overseas; and whether the Administration has an obligation to establish protocols for such a process.Acumen Legal Services filed a motion to dismiss. Confronted with that motion, Newman requested permission to further amend its complaint and expand the case into a class action on behalf of multiple U.S. law firms. The day after that permission was denied (and 13 days after Acumen filed its motion), the law firm withdrew its suit. The result: The offshore LPO industry and its proponents dodged a possible bullet—but also missed a chance for court clarification.So what sayeth the American Bar Association? In August, the ABA Standing Committee on Ethics and Professional Responsibility released Formal Opinion 08-451, regarding a lawyer’s obligation when outsourcing legal and nonlegal support services. LPO companies were quick to trumpet the news that the ABA endorsed outsourcing in this opinion, including EDD review. However, while the opinion appears to be a win for law firms that choose to outsource work to U.S.-based firms and lawyers, it is a lot muddier when it comes to foreign firms.In fact, after carefully reading the opinion from the point of view of a lawyer determining whether to outsource abroad, the more nervous we became about complying with the opinion. Although not everything is absolutely mandated, we are talking about the following being either required or advisable when outsourcing: