Electronic Data Discovery
Hundreds of potentially applicable legal retention periods and scores of legal requirements or business conditions affect how information should be retained or disposed of, and a records compliance program must be tailored to these particular needs. We work with clients across a variety of industries, including the insurance, banking, professional services and health care sectors, to develop and maintain sound records compliance programs that integrate material and electronic records and ultimately pay large dividends in litigation or other proceedings.
Our data discovery team provides practical front-end solutions to control the creation and lifecycle management of records. Through efficient staffing and cost-effective teamwork, we identify and analyze relevant information for the purpose of due diligence and trial readiness. To date, our experience encompasses multibillion-dollar mergers and acquisitions, internal investigations and informal dispute resolution proceedings. And rather than relying upon ad hoc gatherings of associates or paralegals, our dedicated electronic data discovery team puts the premium on precision and process proficiency in the high-volume, rapid review of privileged or other sensitive materials.
Robert W. Dibert
Whether phrased as “records retention,” “records compliance,” or “information governance,” a key to the cost-effective control of information in formal proceedings is to proactively identify and manage it before proceedings begin. We help clients design and implement records compliance programs that meet their specific legal and business conditions.
Within the last several years alone, we have counseled clients in the automotive, banking, food and beverage, healthcare, insurance, manufacturing, nonprofit, professional services and publishing sectors. When advising on records compliance programs, we provide four tiers of service:
Where a non-lawyer consultant has been engaged to advise on records compliance, we review the scope of work to assure that the client will receive a meaningful delivered product that is likely to address its stated needs. We also review resulting records retention schedules and any related legal hold procedures to assess their adequacy in the client’s actual legal environment.
For a records compliance program that has evolved over time, we provide an assessment of how evolution matches the client’s current organization and legal environment. This assessment includes identification of any apparent gaps in the program and general suggestions of how they might be filled.
We also work with clients who have already identified limitations in their programs or want us to follow up with an assessment of specific remedial measures. In these situations, we analyze the business structure and, when necessary, conduct limited employee interviews. These steps result in recommendations both to remedy existing issues, as well as to monitor programs for future changes in business or legal conditions. Where a client wishes to consider integrating archiving or other electronic records compliance solutions, we assist with vendor identification and selection processes.
We develop and implement records compliance programs for clients who have no defined program in place. In these situations, we analyze the business structure and legal environment, interview key employees and sample categories of key business records in order to develop a program with retention schedules. If a client considers integrating archiving or other electronic records compliance solutions, we assist in the vendor identification and selection processes. This tier of service also includes procedures for training officers or other employees charged with ongoing responsibility for the program and monitoring future changes in business or legal conditions.
A sound records compliance program, particularly one that integrates electronic records, pays large dividends in litigation or other proceedings. It also allows management and counsel to quickly pinpoint the business units and individuals most likely to have relevant information, saving time and money while allowing management and counsel to respond quickly if the scope of a proceeding changes.
Beyond the ordinary course of business, both transactions and special inquiries require a precise, rapid review of privileged or other sensitive records to promote strategic business decisions and pass regulatory muster. Our experience encompasses multibillion-dollar mergers and acquisitions, internal investigations and informal dispute resolution proceedings.
Sample engagements include the following:
- Statewide diligence review of deed descriptions in preparation for a merger of multiple public utility companies, including making filings and correcting filings of public indentures.
- Terms and conditions review and analysis for multinational supplier agreements in the automotive industry.
- Confidential internal investigations of potential claims arising from disputes and regulatory issues.
- Witness interviews, investigation and document review for successful mediation of a dispute between a public utility company and telecommunications provider.
- Terms and conditions review and analysis for service agreements in the outsourced customer relations and billing industry.
- Privilege and proprietary issues review and analysis for merger and acquisition activity in healthcare and consumer products industries.
Even in the best records compliance programs, most of the “possibly relevant” information is likely to be insignificant to resolving the specific issues in dispute. By using our electronic data discovery group for document review and analysis, we funnel the most relevant information to the litigation team or other decision-makers for considerably less than standard hourly rates. During the last ten years, additional resources have become widely available in the forms of computer-assisted and offshore contract review. We have worked with both of these resources, which may provide additional time- and cost-saving advantages when appropriate.
For computer-assisted (or “augmented”) review, both technology and consulting provider(s) must be measured against the types of data in question and the need for precision in any particular case. Offshore resources must also be vetted for reliability and agreements must include appropriate assurances of compliance with applicable U.S. law (such as HIPAA or Gramm-Leach-Bliley), as well as supervisory requirements of U.S. legal ethics rules.
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