The primary goal in designing or enhancing existing electronic discovery and information governance programs is to achieve systematic, reasonable and defensible approaches to maintaining and deleting electronic information and to responding to discovery requests. These programs reduce the need to conduct costly, and usually inefficient fact-gathering in response to every request for electronic information, and provide defenses to claims of improper destruction, or spoliation, of evidence.

The records management and retention component of the electronic discovery program is concerned with which electronic documents are retained, for how long, and in what form. Records management is an important part of the electronic discovery program and is unique to each company based on the type of materials processed, the current methods of preservation and the regulatory and legal requirements for the particular client.

The document production protocol establishes processes and provides documentation for handling legal hold notices. It can include a legal hold policy, templates to be sent to employees when preservation duty arises, options for handling back-up storage media, templates for creation of electronic discovery collection notices, information-reviewing processes, and procedures governing future data creation cataloging.

The training and auditing deliverables focus on establishing the new electronic discovery protocols as regular practices that are instilled in the client’s corporate culture, and establishing procedures for periodic review, ensuring that the electronic discovery protocols are being followed and that the system is functioning effectively and correctly.

In those cases where we are asked to provide a Legacy Information Remediation Program, our primary goal is to analyze existing archive media and judge whether the information contained needs to be preserved — due to an existing or likely litigation or investigation hold — or can be deleted and the archive media recycled and reused. We establish procedures that will allow these decisions to be made without the need to restore and review large numbers of backup media, which is costly and very time-consuming. 

Courts and regulators expect large companies to respond quickly and fully to broad electronic discovery requests. Failure to comply can result in negative court rulings and civil, or even criminal, sanctions. Indeed, the past few years have seen an increase in multi-million dollar penalties imposed against companies, and criminal convictions against corporate officers and auditors, for failing to properly maintain or produce electronic information.

The experienced litigators of our Electronic Discovery & Information Governance practice can represent clients in any litigation or investigation where electronic information is involved. We can also work as electronic discovery advisors in cases where other counsel has already been retained. In this capacity, we work with existing counsel, bringing to the matter our particular knowledge and experience in handling complex electronic discovery issues.

Typically, the counsel that we provide to our clients during a litigation or an investigation includes:

• Identifying the client’s legal obligations to preserve and produce electronic information
• Drafting and opposing electronic information and document requests
• Preparing and tracking legal hold notices
• Developing plans for locating, reviewing and producing requested information — this can include selection of tools and vendors for database loading as well as document handling and review
• Designing protocols and search tools that allow for the faster, more efficient searching of documents and electronic storage media
• Designing processes for compliance with applicable privilege, privacy and data security requirements associated with the type and location of the data involved, including, for example, obligations arising under the Health Insurance Portability and Accountability Act, the Gramm-Leach-Bliley Act, and other privacy and data security laws
• Search term creation and testing
• Selecting which production demands to challenge, which documents to produce and the format in which to produce the requested materials
• Defending the client’s chosen electronic discovery and records management methodologies.

An existing, enhanced electronic discovery program is not required in order for us to assist with an existing litigation or investigation. However, because our involvement requires that we conduct some of the same initial assessment and fact-finding research performed when we create electronic discovery programs, we are in that much better a position to create such a program for a client once the particular litigation or investigation is concluded.

Given the increased scrutiny, expanded reach, and ballooning costs and penalties associated with electronic discovery, it is clear that companies can no longer consider electronic information management and storage to be a clerical function. Customized systems are needed to streamline and simplify procedures and reduce the risks faced by companies and their officers and auditors. 

Our Electronic Discovery & Information Governance practice advises clients on the complex web of domestic and foreign rules governing the storage, processing and movement of electronic data across borders. As it has become more common for critical sources of information to be located overseas, and thus outside the jurisdiction of the court where litigation is pending, many countries have restricted access to documents and data within their borders out of concern for their citizens’ privacy and the costs and burdens of compliance with foreign discovery demands.

Clients regularly turn to us for advice regarding three areas: (1) preparation and enforcement of the client’s international discovery requests; (2) defensive motions practice regarding the scope of discovery to be obtained from foreign sources; and (3) compliance with foreign data protection and discovery “blocking” laws.

International Discovery Requests. Non-parties that are outside the jurisdiction of US courts have no obligation to permit the inspection of relevant evidence in response to a subpoena. Instead, such evidence can be obtained only with the assistance of courts and government officials in the foreign country. Our lawyers have experience preparing applications for letters rogatory and letters of request in accordance with applicable foreign law and international treaties, including the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

Discovery Practice in US Courts. Companies with international operations often are forced to respond to demands for the production of witnesses, documents and data located overseas. Not infrequently, the information sought belongs to a subsidiary or affiliate of the company involved in the US litigation. Such discovery, if permitted, can dramatically increase the expense of an already costly domestic discovery process. Our litigators have successfully assisted clients in both resisting and obtaining international discovery from parties’ overseas facilities and affiliate organizations. In matters where other counsel already have been given primary responsibility for a case, we can provide brief-writing assistance in this rapidly evolving area of the law.

Compliance with Foreign Privacy and Data Protection Laws. It sometimes is necessary or desirable to gather evidence located in a foreign country for use in a lawsuit or investigation. A party may seek to transport its own documents and data; litigants may seek access to documents that an adversary or third-party maintains overseas; or a US court or regulator may order a party or non-party to produce certain evidence located in another country. Parties gathering evidence abroad, including evidence from their own files and computer systems, must take precautions to ensure compliance with foreign data protection and “blocking” laws, violations of which may result in substantial fines and even criminal penalties. We regularly help clients develop protocols for gathering, processing and transporting evidence in compliance with the governing law in the countries where the evidence is located.