JAYANTH K. KRISHNAN
Abstract:
The issue of outsourcing jobs abroad stirs great emotion among Americans. Economic free-traders fiercely defend outsourcing as a positive for the U.S. economy while critics contend that corporate desire for low wages solely drives this practice. In this study I focus on a specific type of outsourcing, one which has received scant scholarly attention to date - legal outsourcing. Indeed because the work is often paralegal in nature, many see the outsourcing of legal jobs overseas as no different from other types of outsourcing. But by using as my case studies both the United States and India, the latter which is receiving an ever-increasing amount of outsourced American legal work today, I describe how there are many forms to the legal outsourcing model and how this practice can entail a range of legal services.
This article, however, moves beyond providing a descriptive account of legal outsourcing. Legal outsourcing to India is occurring against the backdrop of an Indian legal system in crisis. For those who are fortunate to benefit from legal outsourcing, the pay-offs are indeed rewarding. But most Indians of course are not participants in - nor beneficiaries of - this practice. In fact, in everyday parlance the word "legal" itself in India is associated with a process that is delay-ridden, backlogged, and unduly expensive. On its face it might seem that legal outsourcing is unconnected to the problems that have long plagued India's legal system. Yet as I will argue, in addition to having an ethical obligation to provide assistance to the legal environment upon which they draw, those engaging in legal outsourcing also have an economic incentive to ensure that India has a better-operating legal system. Thus, as a means of raising much needed revenue to fund its legal reform efforts, India, as I propose, might levy a minimal fee on U.S. legal outsourcers, and as I explain, because strengthening the rule of law is ultimately in their financial interest, these American investors may well accept shouldering such a cost.
Keywords: legal, outsourcing, india, litigation, comparative law, intellecutal property, corporate social responsibility
Contact Information for JAYANTH K. KRISHNAN (Contact Author)
Email address for JAYANTH K. KRISHNAN
William Mitchell College of Law
875 Summit Ave
St. Paul , MN 55105-3076
United States
651-290-7504 (Phone)
“ The above article has been reprinted from SSRN and LegalEase Solutions LLC does not hold any rights to the same”
Monday, March 26, 2007
Recent Case Shows Dangers of Electronic Discovery Mishaps
With practitioners struggling to apply new amendments to the Federal Rules of Civil Procedure dealing with electronically stored information, the recent opinion in In Re NTL, Inc., illustrates the dangers of missteps in electronic discovery. Magistrate Judge Andrew J. Peck administered the harsh sanction of an adverse inference instruction for spoliation of electronic evidence.
The problems began in 2002 when Plaintiffs filed a class-action suit against NTL (Old NTL) for securities violations. Attorneys issued “hold memos,” instructing employees not to destroy documents that could be relevant to litigation. NTL went through a bankruptcy, after which it emerged as two distinct organizations: NTL Europe, the successor to Old NTL and a continuing defendant in the litigation, and NTL, Inc. (New NTL). When Plaintiffs requested discovery, NTL Europe responded by denying it had any responsive documents because they were all in the hands of New NTL. Therefore, Plaintiffs went through the process of obtaining, at their own expense, non-party discovery from New NTL. Even so, a large percentage of emails and electronic documents from key officers were missing.
A series of discovery missteps was revealed by depositions. First, there was an access agreement, established as part of the bankruptcy demerger, that allowed NTL Europe to freely obtain documents from New NTL for use in complying with its legal obligations. In addition to being angry that counsel did not reveal the agreement at an earlier stage, Magistrate Judge Peck held that the access agreement gave NTL Europe control over the documents, regardless of the physical dislocation. NTL Europe therefore had a responsibility to turn them over in discovery, rather than force Plaintiffs to go through the expensive process of obtaining informal, non-party discovery.
The second misstep was NTL’s failure to preserve electronically-stored information. As soon as NTL reasonably anticipated litigation, it had a duty to preserve relevant documents by suspending its normal document destruction policies and implementing a litigation hold. The two hold memos issued were insufficient. Many employees did not receive them, and others ignored them. Neither NTL company reminded its employees to preserve relevant documents and electronically-stored information. New NTL outsourced its IT systems to IBM without communicating any litigation-hold instructions. Moreover, New NTL replaced its computers, donating the old ones to charity, without any regard for saving the emails on the computers. As a result of all this, responsive e-mails and documents from key players involved in the litigation were lost. Magistrate Judge Peck held that the conduct constituted gross negligence, a culpable state of mind. Because NTL had control over relevant documents, and with a culpable state of mind failed in its duty to preserve those documents, a negative inference instruction was warranted.
There are several lessons to be learned from the case. In the global, electronic business environment, control is an expansive concept unlimited by physical geography. It is essential for counsel to get a handle on the client’s information system and know exactly what information the client actually controls. It is not sufficient to passively issue litigation hold memos. Counsel must take active steps to ensure compliance with the litigation hold and to prevent destruction of electronically stored information. This requires a working familiarity with client’s technology, and technological policies. As illustrated in the case, allowing business to proceed as usual can be extremely costly.
The problems began in 2002 when Plaintiffs filed a class-action suit against NTL (Old NTL) for securities violations. Attorneys issued “hold memos,” instructing employees not to destroy documents that could be relevant to litigation. NTL went through a bankruptcy, after which it emerged as two distinct organizations: NTL Europe, the successor to Old NTL and a continuing defendant in the litigation, and NTL, Inc. (New NTL). When Plaintiffs requested discovery, NTL Europe responded by denying it had any responsive documents because they were all in the hands of New NTL. Therefore, Plaintiffs went through the process of obtaining, at their own expense, non-party discovery from New NTL. Even so, a large percentage of emails and electronic documents from key officers were missing.
A series of discovery missteps was revealed by depositions. First, there was an access agreement, established as part of the bankruptcy demerger, that allowed NTL Europe to freely obtain documents from New NTL for use in complying with its legal obligations. In addition to being angry that counsel did not reveal the agreement at an earlier stage, Magistrate Judge Peck held that the access agreement gave NTL Europe control over the documents, regardless of the physical dislocation. NTL Europe therefore had a responsibility to turn them over in discovery, rather than force Plaintiffs to go through the expensive process of obtaining informal, non-party discovery.
The second misstep was NTL’s failure to preserve electronically-stored information. As soon as NTL reasonably anticipated litigation, it had a duty to preserve relevant documents by suspending its normal document destruction policies and implementing a litigation hold. The two hold memos issued were insufficient. Many employees did not receive them, and others ignored them. Neither NTL company reminded its employees to preserve relevant documents and electronically-stored information. New NTL outsourced its IT systems to IBM without communicating any litigation-hold instructions. Moreover, New NTL replaced its computers, donating the old ones to charity, without any regard for saving the emails on the computers. As a result of all this, responsive e-mails and documents from key players involved in the litigation were lost. Magistrate Judge Peck held that the conduct constituted gross negligence, a culpable state of mind. Because NTL had control over relevant documents, and with a culpable state of mind failed in its duty to preserve those documents, a negative inference instruction was warranted.
There are several lessons to be learned from the case. In the global, electronic business environment, control is an expansive concept unlimited by physical geography. It is essential for counsel to get a handle on the client’s information system and know exactly what information the client actually controls. It is not sufficient to passively issue litigation hold memos. Counsel must take active steps to ensure compliance with the litigation hold and to prevent destruction of electronically stored information. This requires a working familiarity with client’s technology, and technological policies. As illustrated in the case, allowing business to proceed as usual can be extremely costly.
Legal Freelancing??
25 March 2007
Ashish
What the heck..Is it possible?? How do you do it? Well it is a tough question to answer, specially when you are in India and your clients are in US or Europe. There are tools and technologies to help you out, but the field is too traditional to handle. The current scenario is that legal outsourcing firms are spreading their businesses and getting more and more clients. But then, you are a freelancer, working alone, with limited resources and handful of knowledge. Can you go ahead with it or it is just too cumbersome to find a client?
Right now the scenario is that the outsourced legal jobs are mainly in IPR, contract drafting, document reviews or legal research. Well, the clients are abroad and you are going to approach them...how?
Get in touch with freelance website: These websites have a handful of projects listed (Elance being the best provider). But, the problem is that there are big players waiting for it, and you have tough time convincing the buyers. The lawyers from US have a benefit of being easily accessible to the client, being able to understand them and having years of experience. What to do now..Again the cost is the key...how much you bid and what portfolio you show. Be patient, it will take some time for you to get your first project and hopefully by then, impatient will not wait (reducing competition)!
Get in touch with law firms: These law firms (in India and abroad) often look for freelancers to carry out there jobs cheaply. The Indian law firms are in the phase of transition from serving traditional Indian clients to handling foreign clients. So they so called half established business, which are either looking for a VC to invest or striving to be self sustainable in due time.
The path to freelance in legal area is foggy though I believe its worth pursuing.
“ The above article has been reprinted from ashiish.blogspot.com and LegalEase Solutions LLC does not hold any rights to the same”
Ashish
What the heck..Is it possible?? How do you do it? Well it is a tough question to answer, specially when you are in India and your clients are in US or Europe. There are tools and technologies to help you out, but the field is too traditional to handle. The current scenario is that legal outsourcing firms are spreading their businesses and getting more and more clients. But then, you are a freelancer, working alone, with limited resources and handful of knowledge. Can you go ahead with it or it is just too cumbersome to find a client?
Right now the scenario is that the outsourced legal jobs are mainly in IPR, contract drafting, document reviews or legal research. Well, the clients are abroad and you are going to approach them...how?
Get in touch with freelance website: These websites have a handful of projects listed (Elance being the best provider). But, the problem is that there are big players waiting for it, and you have tough time convincing the buyers. The lawyers from US have a benefit of being easily accessible to the client, being able to understand them and having years of experience. What to do now..Again the cost is the key...how much you bid and what portfolio you show. Be patient, it will take some time for you to get your first project and hopefully by then, impatient will not wait (reducing competition)!
Get in touch with law firms: These law firms (in India and abroad) often look for freelancers to carry out there jobs cheaply. The Indian law firms are in the phase of transition from serving traditional Indian clients to handling foreign clients. So they so called half established business, which are either looking for a VC to invest or striving to be self sustainable in due time.
The path to freelance in legal area is foggy though I believe its worth pursuing.
“ The above article has been reprinted from ashiish.blogspot.com and LegalEase Solutions LLC does not hold any rights to the same”
Wednesday, March 21, 2007
Let us begin our day with a smile....:)
After going through Doug's article on legalese, I thought this is an apt metaphor:
A Contract Law professor asked one of his students, "If you were to give someone an orange, how would you go about it?"
The student replied, "Here is an orange"
The professor was outraged. "No! No! Think like a lawyer!"
Finally the professor replied, "Okay, I tell you.
"I hereby give and convey to you all and singular, my estate and interests, rights, title, claim and advantages of and in, a fruit, popularly known as orange, together with all its rind, juice, pulp, and seeds, and all rights and advantages with full power to bite, cut, freeze and otherwise eat, the same, or give the same away with and without the pulp, juice, rind and seeds, notwithstanding anything contained herein before or hereinafter or in any other deed, deeds or instruments of whatever nature or kind to the contrary."
A Contract Law professor asked one of his students, "If you were to give someone an orange, how would you go about it?"
The student replied, "Here is an orange"
The professor was outraged. "No! No! Think like a lawyer!"
Finally the professor replied, "Okay, I tell you.
"I hereby give and convey to you all and singular, my estate and interests, rights, title, claim and advantages of and in, a fruit, popularly known as orange, together with all its rind, juice, pulp, and seeds, and all rights and advantages with full power to bite, cut, freeze and otherwise eat, the same, or give the same away with and without the pulp, juice, rind and seeds, notwithstanding anything contained herein before or hereinafter or in any other deed, deeds or instruments of whatever nature or kind to the contrary."
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