Practice Leaders: Jason Lichter, Jeffrey A. Carr, Stephen G. Harvey, Sharon R. Klein and Laurence Z. Shiekman
While technology allows businesses to store ever-increasing volumes of records and other information, managing this flood of data poses complex legal issues, from security and privacy requirements to compliance with discovery demands in litigation. With more than 50 lawyers experienced in electronic records management, e-discovery and electronic data privacy and security, Pepper Hamilton LLP has the breath and experience to address all legal issues presented by the proliferation of electronically stored information (ESI).
Our Discovery Services practice expanded in 2012 with the addition of Jason Lichter, who joined the firm as Director of Discovery Services and Litigation Support. Mr. Lichter develops and implements strategies to ensure that the firm’s clients receive the highest quality discovery and litigation support services in a cost-effective and defensible manner. Mr. Lichter also advises colleagues and clients on how to best leverage the latest technologies and e discovery tools to efficiently guide matters from initial document preservation and collection to production and eventual presentation at trial.
Electronic Records Management
Pepper counsels clients through the entire electronic records management (ERM) lifecycle—from tailoring a document retention program to navigating court rules and legal decisions regarding the production of ESI. ERM programs enable businesses to meet their legal and business requirements and to take swift and appropriate action in response to requests for ESI in connection with litigation or government investigations.
Pepper also advises clients on the regulatory and statutory framework that affects records management. Our advice ranges from single-issue questions such as required retention periods to crafting complete management policies that incorporate the best practices we have developed through working with hundreds of clients on these issues.
Electronic Records Management Representative Engagements
Representative ERM engagements include:
- drafting and implementing record retention programs and policies that concentrate on ESI and ensure compliance with applicable law
- drafting and implementing e-mail retention policies
- drafting, implementing and managing “litigation holds” to avoid allegations of spoliation and potential sanctions
- conducting internal investigations into alleged improper access of confidential ESI
- training on corporate e-mail use, document retention and other records retention issues
- advising clients on their relations with records management vendors
- auditing compliance with records retention policies.
The days of producing multiple boxes of documents in response to a discovery request or subpoena are now largely gone. The sheer volume of ESI created by most companies brings with it a host of legal issues and discovery costs. An increasing number of rulings, verdicts and settlements are turning on e-discovery issues, including those relating to the burdens and cost of producing ESI and the preservation of ESI. Given the potential for e-discovery disputes to become a focus of any litigation, litigants must proactively address e-discovery issues.
Pepper handles commercial, pharmaceutical, construction, intellectual property, environmental, insurance, criminal and labor disputes of various sizes and complexity in state and federal courts and arbitrations. Many of Pepper’s litigation engagements involve vast quantities of ESI requiring a defensible and reasonable e-discovery plan. Planning not only assists clients in navigating the waters of applicable e-discovery rules and case law, but also guides clients’ expectations regarding the associated costs.
Pepper’s e-discovery experience extends not only to helping clients meet their obligations to preserve and produce electronic materials, but also to defending against other parties’ efforts to take far-reaching “discovery on discovery” regarding the underlying information systems themselves. At the outset of litigation, Pepper works with clients to identify and inventory their potentially discoverable electronic resources, and then to develop reasonable and cost-effective plans for preserving data. Pepper also advises on the selection of e-discovery vendors, consultants and computer forensics experts.
Due to our experience in a large number of cases and with several leading vendors, we are thoroughly familiar with indemnification issues and the negotiation of terms with vendors. In addition to contracting with vendors, we assist clients who contract directly with vendors for document production and review.
In many situations, de-duplication, “near de-duplication” or “concept-based” searching (using validated electronic tools), as well as the automated exclusion of pre- and post-discovery cut-off date materials, drastically reduces the amount of data and documents that need to be reviewed. Pepper has negotiated with opponents’ counsel the scope and format of electronic productions and, where the parties could not agree, presented electronic discovery issues to the court.
Pepper has experience responding to notices to depose company representatives regarding clients’ information technology infrastructure –successfully narrowing the scope of such discovery, and preparing company witnesses for deposition. Where necessary, Pepper has also developed experts in the preservation and recovery of electronic information to testify about clients’ preservation and management of potentially discoverable ESI. Pepper also has secured special protective orders for sensitive data, where the electronic formats of the data reflect proprietary information about clients’ business procedures.
Pepper’s in-house software developers specialize in litigation support, and can create custom applications to suit the specific needs of a case. These applications are particularly useful for unique review requirements, as well as high-volume native document indexing and searching. Often these applications do not involve vendor participation, helping to reduce costs over traditional review methods by 50 percent or more.
Pepper’s extranet network provides clients, co-counsel and internal users with secure and reliable access to internal databases and case management tools specific to your requirements, anytime and anywhere. The firm’s high-bandwidth capabilities and Web-based applications increase the efficiency and effectiveness of electronic document review.
E-Discovery Representative Engagements
Pepper’s experience in e-discovery includes:
- developing and implementing rationale and plan for the identification, retrieval, review and production of paper documents and ESI in federal class actions, multidistrict litigation (MDL), mass tort litigation and other large, document intensive cases throughout the United States
- serving as e-discovery liaison to an MDL court
- drafting search and retrieval protocols for electronic records, including negotiating search terms with adversaries
- coordinating retrieval and review process for electronic records with e-discovery vendors and contract attorneys
- developing expert witnesses to testify regarding parties’ preservation and collection of electronic records
- coordinating with computer forensics experts in the identification and analysis of company-wide hard drives and databases.
Privacy and Data Security
The transmittal of ESI can involve complex data privacy and security issues controlled by the laws and regulations of the federal government, state governments and various foreign countries. We work with clients in a range of industries, including health care, colleges and universities, financial services, multinational corporations and government contractors, to address these issues.
Privacy and Data Security Representative Engagements
Some of Pepper’s privacy and data security engagements include:
- assessing, designing and implementing information security and privacy compliance programs
- drafting policies and counseling employers on e–mail privacy issues in the workplace
- assessment and compliance advice on state and federal identity theft laws
- advice on criminal investigations into data and computer security breaches
- responding to security and privacy incidents and creating remedial plans and compliance protocols
- structuring e-commerce arrangements, including regulatory advice in privacy, security, CAN-SPAM and state, federal and international legislation.
For more information, please contact any member of the Electronic Records Management and Discovery Practice Group.