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What are litigation support services?

Litigation support services cover discovery, records, depositions and expert work. What each one does, the rules behind it, and what to ask before you hire one.

By Tavrn Team · · 4 min read

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Illustration of an open case file linked by dotted lines to a courthouse, an office building, a document stack, a stenotype machine, a sealed envelope and a row of medical record folders

Litigation support services are outside providers a law firm hires for the non-legal work a case needs. They collect documents and data, retrieve medical records, record depositions and organize evidence. The ABA Model Rules treat them as nonlawyers outside the firm. The lawyer stays responsible for their work [1].

What counts as litigation support

The work sits between legal strategy and raw evidence. A provider gathers, formats or records material; the attorney decides what it means.

The comment to ABA Model Rule 5.3 gives examples of outside help. They include "an investigative or paraprofessional service" and "a document management company" that builds a database for complex litigation [1].

Common types include:

  • Document and e-discovery services
  • Medical record retrieval
  • Court reporting and deposition transcripts
  • Subpoena preparation and service
  • Support for expert witnesses

Common services compared

Each service answers to its own rules. The federal rules below apply in federal court. State courts have their own versions.

Service

What it produces

Rules that shape the work

Document and e-discovery

Collected, reviewed and produced documents and data

FRCP 26(b)(1) scope [2]; FRCP 34 requests [3]

Court reporting

Audio, video or stenographic record of a deposition

FRCP 30(b)(3) [4]

Subpoenas for documents

Documents and data from people outside the case

FRCP 34(c) [3]; FRCP 45 [5]

Medical record retrieval

Records, bills and imaging from each provider

HIPAA authorizations [6]; HIPAA and subpoenas [7]

Expert support

The facts and data an expert relies on

FRCP 26(a)(2) [2]

Discovery and e-discovery

Federal discovery reaches any nonprivileged matter that is "relevant to any party's claim or defense and proportional to the needs of the case" [2]. Rule 34 lets a party ask for documents and electronically stored information [3]. That includes "writings, drawings, graphs, charts, photographs, sound recordings, images, and other data" [3].

Large cases can mean a lot of data. That is why the ABA comment names a document management company as one example of outside help [1].

Depositions and court reporting

Rule 30 says the party that notices a deposition "must state in the notice the method for recording the testimony" [4]. Unless the court orders otherwise, testimony "may be recorded by audio, audiovisual, or stenographic means," and any party may arrange to transcribe it [4].

That record is what a court reporting service is hired to make. Rule 30 also allows a deposition by phone or other remote means if the parties agree or the court orders it [4].

Subpoenas for documents

Rule 45 lets a party command a person to "produce designated documents, electronically stored information, or tangible things" [5]. Every subpoena must name the court it comes from and the case title and number [5]. It must also set out the text of Rule 45(d) and (e) [5].

The person who responds must produce documents "as they are kept in the ordinary course of business" or label them to match the categories in the demand [5].

Medical records follow HIPAA, not only court rules

When the evidence is a medical record, HIPAA decides what a provider may release. A provider needs a valid authorization to release health records, unless a HIPAA exception applies [6]. The Privacy Rule lists the exceptions.

A valid authorization must include, among other things [6]:

  • a specific description of the information to be disclosed
  • who may disclose it and who may receive it
  • an expiration date or expiration event
  • the patient's signature and the date

A subpoena works differently. Without a court order, a provider may answer one only if it gets "satisfactory assurance" [7]. That means proof the patient was notified, or proof that a protective order was sought [7]. With a court order, it may disclose only what the order expressly allows [7].

Deadlines differ too. HIPAA's access rule allows 30 days plus one 30-day extension (45 CFR 164.524); requests under an authorization have no federal deadline [8]. Without follow-up, an authorization request can sit.

Tavrn is a medical record retrieval company. Tavrn retrieves medical records from any US provider: one authorization in, complete record out, via platform, integration or API. To start a request, Tavrn needs a signed patient authorization and what you know about the provider: name, location, and the dates of service [9]. Every open request is followed up automatically every 48 hours [9]. Teams can start requests from Litify, SmartAdvocate, Clio, Smokeball, SharePoint or Dropbox [9].

What the ethics rules expect when you outsource

The comment to Rule 5.3 is direct: "a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer's professional obligations" [1].

It lists what that effort depends on [1]:

  • the provider's education, experience and reputation
  • the nature of the services
  • the terms of any arrangements to protect client information
  • the legal and ethical setting where the work happens, "particularly with regard to confidentiality"

How to choose a provider

Turn those factors into questions before you send case files:

  1. What does the service produce, and in what format? Ask for a sample deliverable.
  2. How is client information protected? For medical records, ask if the provider works under HIPAA. Ask if it offers a business associate agreement.
  3. Who works on the file? How are they trained and supervised? Rule 5.3 asks you to weigh this [1].
  4. How will you see status? Ask whether each request keeps a history of every attempt, not just a final delivery.
  5. Where does the output land? Delivery into your case management system saves filing by hand.

For reference, Tavrn handles protected health information under HIPAA; a BAA is available on request. Every outreach attempt on a request is logged [9].

What to do next

If medical records are the slowest part of your litigation support, see how Tavrn works on the law firm page. Or book a demo and bring a provider you are still waiting on.

Sources

  1. Rule 5.3: Responsibilities Regarding Nonlawyer Assistance — Comment — American Bar Association
  2. Rule 26. Duty to Disclose; General Provisions Governing Discovery — Federal Rules of Civil Procedure (Cornell LII)
  3. Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things — Federal Rules of Civil Procedure (Cornell LII)
  4. Rule 30. Depositions by Oral Examination — Federal Rules of Civil Procedure (Cornell LII)
  5. Rule 45. Subpoena — Federal Rules of Civil Procedure (Cornell LII)
  6. 45 CFR 164.508 - Uses and disclosures for which an authorization is required — eCFR
  7. 45 CFR 164.512 - Uses and disclosures for which an authorization or opportunity to agree or object is not required — eCFR
  8. 45 CFR 164.524 - Access of individuals to protected health information — eCFR
  9. Medical record retrieval FAQ — Tavrn

Frequently asked questions

Is medical record retrieval a litigation support service?

Yes. It is outside help with case evidence, the kind of nonlawyer service ABA Model Rule 5.3 addresses [1]. HIPAA then sets what each provider may release and on what paperwork [6].

Do litigation support providers give legal advice?

They should not. The comment to ABA Model Rule 5.3 points lawyers to Rule 5.5(a), on the unauthorized practice of law, when they use nonlawyers outside the firm [1]. The attorney keeps the legal judgment.

Can a subpoena replace a patient authorization for medical records?

Sometimes. HIPAA lets a provider answer a subpoena without an authorization if a court order covers the disclosure, or if the provider gets satisfactory assurance that the patient was notified or that a qualified protective order was sought [7].

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