Mayer Brown's Electronic Discovery & Records Management practice works with clients to manage the risks and costs associated with electronic information by establishing procedures for electronic discovery and records management that allow for timely responses to discovery demands and are defensible before any court or regulatory body. Our attorneys in the US, EU and Asia are experienced in litigation, corporate and regulatory law and have addressed electronic discovery and records management problems across multiple industries. Clients rely on us to design new, or enhance their existing, electronic discovery and records management programs, as well as to assist with pending litigations and investigations.
The vast majority of business information is created and stored electronically. This information can exist in a multitude of formats and reside in a multitude of locations within a company, or even with third-party vendors. As courts and regulators expand the reach of electronic discovery, the burdens and costs of preserving and managing this information keep increasing. More importantly, the risks associated with electronic information, including the failure to properly preserve, collect, disclose, produce and manage electronic information correctly, have grown substantially as courts and regulators focus on these issues.
We regularly assist our clients with two primary services:
Electronic Discovery & Records Management Programs
The primary goal in designing or enhancing existing electronic discovery and records management 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.
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Litigation / Investigation Plans
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 & Records Management 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
- 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.
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Practice at a Glance
- Our practice includes more than 30 lawyers in the US and EU who are experienced in litigation, corporate and regulatory law. This experience allows us to handle entire matters as trial counsel, or to act in a more specific role as electronic discovery advisors either to your in-house counsel or to any other retained litigation counsel.
- Clients rely on us to design new, or enhance their existing electronic discovery records management programs, as well as to assist with pending litigation and investigations.
- We have assisted Fortune 500 and Fortune 50 companies from a broad variety of industries including insurance and financial and business consulting, as well as heavily regulated industries such as pharmaceutical, chemical, financial services and automotive manufacturing.
