Counsel to Counsel - May 2008 - (Page 26)

in the spotlight e-DiscoveryinAction By John M. Toth ©iStockphoto.com/bubaone T he advent and proliferation of electronic records spawned the need for a lot of new rules. Those rules have given birth to the many new policies corporations have put in place governing the handling and management of electronic records. For many, the effectiveness of those policies can only be measured in the courtroom—where those practices and protocols are really put to the test. “Every company has a mountain of electronic information,” says William W. Belt Jr., litigation partner and head of the e-discovery team at Williams Mullen. “Inhouse counsel must identify the rocks they need, and break those rocks into usable pebbles that can be properly aimed.” process. Having a detailed e-discovery protocol avoids problems throughout the process and helps gain this advantage. Start by identifying the key issues in the complaint, the key persons to answer those issues and the way they generate electronic information, whether it is on laptops, home PCs, PDAs or flash drives that move data from one device to the next. Find the company’s stored—and how outside technology vendors and corporate and law firm technology departments may be involved. “Using the right experts and the right tools will find the right information,” says Belt. “That eliminates the communication issues at the root of most e-discovery problems.” Start interviewing the key persons before the first meeting with opposing counsel. This list of people will likely expand as interviews go forward, making it essential for identifying the scope of the required e-discovery. Belt notes, “Your interviews will tell you where the e-documents are archived, how the servers are structured and the document types you may need to produce.” Define the Field Winning litigation requires the right strategy and a well-managed information gathering and filtering process that draws on sound retention and hold policies already in place. Oftentimes, the information that can be most compelling at trial can only be surfaced from a wellthought-out and well-executed discovery “ ounselmustremove C themysteryso thatthepeopleyou interviewknowthe rationaleforcollecting andpreservingcertain information.” strongest position and identify the electronic information—emails, e-documents, databases, voicemails, text messages—that support it. Know how the electronically stored information (ESI) is generated, used and Knowledge Is Power Help employees on the list understand the discovery process and their role in it. “Counsel must remove the mystery so that the people you interview know the rationale for collecting and preserving certain information. Attorneys should assure their clients that they will take steps through Protective Orders to secure the company’s 26 LexisNexis® Martindale-Hubbell® http://www.iStockphoto.com/bubaone

Table of Contents Feed for the Digital Edition of Counsel to Counsel - May 2008

Counsel to Counsel - May 2008 Contents Harassment Policies NEC Corporation of America and Duane Morris LLP Lost or Stolen Data: Minimizing Fallout On-Boarding the Board Drafting Fair, Efficient and Enforceable Arbitration Agreements Responding to Counterfeit Products Crafting an English-Only Workplace Policy Distressed Debt: New Players, Global Sophistication Make Restructuring More Complex IP Confidential: Plan Ahead, Act Fast to Protect Your Trade Secrets Adverse Changes: Think Ahead in a Strained M&A Market Optimizing Web 2.0 Technology: Expanding Your Professional Network Union Pacific Railroad Company and Patton Boggs LLP Warming Warning: Develop Your Climate Change Strategy Now Risk Sharing: Expect New Obstacles and Expenses in Syndicated Loans E-Discovery in Action Diversification at the Gate Energy

Counsel to Counsel - May 2008

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