Do law firms need e-discovery practices and/or legal specialists? A recent Cowen Group study suggests more than one-half of the AmLaw 200 think not. 

Before turning to the Cowen Group’s survey findings, let me show my hand. The question whether a firm should have an EDD attorney is not new. In my June 2006 post E-Discovery Attorneys I agreed with a published article arguing that firms need e-discovery attorneys. My May 2007 white paper, 4 Ways an eDiscovery Attorney Can Make Your Firm More Successful, set forth in some detail reasons to have an e-discovery lawyer.

Last week the Cowen Group released The Current State: eDiscovery Practice Groups at AmLaw 200 Firms (PDF download); see also 87 and Counting…, which is a blog post about the report. The report finds that 87 of the AmLaw 200 “have an area or practice group dedicated to handling eDiscovery matters.”

This is significant growth since I started writing about this in 2006. My question is, what are the other 113 AmLaw 200 firms doing about e-discovery? Leaving aside the few that may not do litigation, I suppose they would answer “we have multiple lawyers who have e-discovery expertise and see no need to dedicate anyone to it.” Or they might say, “Many of our litigators are expert at the legal issues of discovery; for the technology, we rely on vendors and consultants. So we do not see a need for dedicated lawyers. Your logic that we need dedicated lawyers could apply to way too many sub-specialties to be practical.”

I was surprised to see a majority do not have lawyers dedicated to e-discovery. When I first wrote about this issue in 2006, it seemed the only way to get the necessary expertise was with dedicated resources. As EDD know-how has propagated, I am not as convinced of this today. I do think, managed effectively, dedicated EDD lawyers provide better service and a competitive advantage. But I can’t make a compelling case that it’s malpractice not to have one or more of them. (I’m reminded that you don’t see “VP of Electricity” anymore, meaning that once some technologies mature, it’s not longer necessary to a specialist at every company focusing on them.)

The “right answer” is not obvious to me. Readers – what do you think? Do these data reflect a period of transition or a steady state? Is there a “right answer” about what firms should do?

[The study also has intriguing findings about document review, which I will address in a separate post.]