The dawning of the 21st century ushered in the electronic era in which businesses now operate. Companies of all sizes are transitioning from a paper-based to a paperless world, increasingly utilizing computers and computer-based devices in the conduct of their daily operations. According to one study, 92% of all new data is stored in electronic form, and 60% of all business critical information is stored within corporate e-mail systems. Indeed, in 2007 an astonishing 92 billion e-mails were sent each day, worldwide. And this electronically-stored information (“ESI”), which for many businesses accumulates daily at an exponential rate, is stored on a variety of media, from desktop and laptop computers, to cell phones and portable e-mail devices, to network servers and Internet shared spaces.
The prominent role of ESI in business, however, poses new challenges and adds complexity and expense to litigation, particularly in regards to discovery. Compounding this situation are the 2006 amendments to the Federal Rules of Civil Procedure, which provided expressly for discovery of ESI. As soon as litigation is reasonably anticipated, companies must preserve relevant ESI and must then review, analyze, and produce it early in the litigation process. Unless companies have evaluated their ESI stores and implemented an e-discovery compliance program, they are ill-prepared to meet their ESI discovery obligations and expose themselves to crippling litigation sanctions, including payment of an opponent’s attorney fees, adverse inference instructions, and default judgments. Indeed, although the case law in this area evolves daily, one principle has crystallized: courts have little tolerance for businesses that fail to comply with their e-discovery obligations.
Because of the significant risks and costs associated with ESI discovery, forward-thinking companies are retaining special counsel to handle e-discovery compliance. At Rhoads & Sinon, we view our clients’ e-discovery obligations and risks seriously. Our E-Discovery practice group will assist you and your IT professionals in crafting and implementing a comprehensive e-discovery compliance program that includes policies for document retention and destruction and protocols for litigation holds. Further, working with your IT department or outside consultants, we assist you in creating a systematic process for identification, collection, analysis, and production of ESI. We harness our years of litigation experience and a developing body of case law to help fashion a compliance program that will facilitate an effective and efficient response to ESI requests, while seeking to control expense and disruption to your routine business operations.
Electronic Records Management and Retention Policy: The time for planning for ESI compliance is not when you have been served with the summons and complaint, but before litigation even emerges on the horizon. To that end, each company must design and implement an electronic records management and retention policy tailored to its unique business needs. Working in concert with your top management, legal department, and IT personnel, the E-Discovery practice group will assess your information technology systems and shape a program that retains ESI critical to your legitimate business needs and regulatory requirements but routinely removes from your system ESI that serves neither function. The E-Discovery practice group will assist in implementing systems which expedite identification and retrieval of various forms of ESI relevant to specific litigation. Additionally, we will design other policies to address specific needs, such as e-mail usage and compliance with privacy laws and regulations.
Litigation Readiness and Support: When litigation is reasonably anticipated, you have a duty to preserve ESI relevant to the subject matter of the action. With the help of our E-Discovery practice group, you will already have in place a litigation hold protocol that will identify custodians of ESI, notify them of their duty to preserve and explain the consequences of non-compliance, and describe for them the subject matter of the action to ensure swift identification and preservation of ESI. We will assist you in implementing and monitoring compliance with the litigation hold in order to avoid debilitating spoliation sanctions.
Collection, Review, and Production of ESI: Once the litigation hold is implemented, the company must move to collect and produce relevant ESI. By collaborating with in-house counsel, and IT personnel, the E-Discovery practice group will formulate a strategy, based on a case assessment, to identify and collect the ESI relevant to the dispute. We will assist you in deploying necessary e-discovery software and work with you in the search and review process, or, if warranted by the complexity of the action and nature of the risk it poses you, oversee third-party vendors to allow for efficient, cost-effective, and expeditious collection and review of ESI, while safeguarding from disclosure your privileged, proprietary, and other confidential information.
Litigation Representation: We will represent you in court, including appearing at the Rule 26(f) meet-and-confer conference mandated in all federal court litigation. We will negotiate with opposing counsel a reasonable discovery plan and develop strategies for ESI-related motion practice. And remember, e-discovery is a two-way street. Thus, we will exploit your opponent’s lack of preparation and pursue diligently, but cost-consciously, production of ESI that you are entitled to under the rules. Most importantly, we will bring to bear our many years of litigation experience to handle your entire case, guiding you to a satisfactory conclusion, throughout settlement, mediation, or trial and appeal.