Electronic Discovery & Information Management Counseling

Gibbons is at the forefront of e-discovery. For more than a decade, the Gibbons E-Discovery Task Force has deftly guided clients through the challenging waters of e-discovery, providing timely, practical, cost-effective solutions to e-discovery and information management related challenges, including those related to compliance with complex new and evolving regulations and standards of practice; management of huge volumes of electronic data and social media requiring preservation, analysis, and review in litigation; onerous mandates on financial institutions for ongoing retention, organization, and retrieval of millions of electronic records; and information management policies and procedures that may be inadequate or no longer relevant in the electronic age.

The Gibbons E-Discovery Task Force is here to guide its clients through this ever changing and dangerous landscape. The E-Discovery Task Force is an interdisciplinary group of attorneys, information technology specialists, and knowledge management professionals, all of whom bring their significant and diverse experiences to bear in serving two critical, interrelated functions – to effectively counsel clients and to provide all Gibbons attorneys with comprehensive, up-to-the minute training in this cutting-edge discipline. Whether monitoring decisional law, relevant regulations, and emerging trends; offering practical and cost-effective strategies for responding to discovery demands; evaluating e-discovery and litigation support vendors for cost and process defensibility; or drafting and implementing customized information management, social media, and legal hold policies, the Gibbons E-Discovery Task Force is well-equipped to solve your organization’s most difficult e-discovery and related problems.

Since the significant amendments to the Federal Rules of Civil Procedure in December 2006, and again, most recently, in December 2015, courts have wrestled with e-discovery issues with increasing frequency. Indeed, over the past 10 years, state and federal courts have issued hundreds of opinions addressing issues that until then were rarely, if ever, discussed – spoliation, evidence collection, form of production, legal hold and preservation, computer-assisted review or predictive coding, “clawback” agreements under FRE 502, metadata preservation and production, privilege waiver, social media discovery, and related issues. In this regard, corporate litigants must be concerned that the merits of their claims and defenses do not take subordinate positions to the costs and other burdens of dealing with incredibly onerous e-discovery demands and obligations. Moreover – and, perhaps, more importantly – companies must be concerned with avoiding the threat or imposition of the severe sanctions courts have imposed with alarming frequency when companies have failed to comply with the e-discovery rules and meet their common law obligations, and when their document and records management policies and procedures cannot be defended. Now, with the onset of significant changes to Rules 26 and 37(e) intended to mitigate the heavy preservation burden and harsh sanctions for spoliation of evidence, companies are struggling with the extent to which they can modify their preservation and collection activities, while steering clear of the still very present threat of sanctions for missteps.

In addition, while judges throughout the country vary greatly in their interpretations of the relevant rules and obligations and differ in their approaches to remediation for allegedly improper behavior, an overriding theme has evolved: those companies that can demonstrate and document reasonableness in the crafting and execution of their document management policies, as well as their litigation-related preservation and production efforts, will be afforded greater latitude when it comes to requests for limitations on the scope and cost of e-discovery responses, and greater tolerance for the occasional – and inevitable – missing document or flaw in the collection process.

Areas of Focus

- National Discovery Counsel (see below)

- Evaluation and analysis of the impact of key decisional law

- Litigation/investigation hold directive counseling addressing, for example, hold triggers, effective communication, and compliance

- E-discovery best practices compliance counseling and assistance, including pre- and post-litigation measures to minimize sanctions potential

- Vendor affiliations for cost minimization and defensibility in location, preservation, restoration, review, and production of e-data

- Responding party counseling addressing effective measures for limiting the scope of e-document demands and minimizing compliance costs

- Cost-shifting strategies for imposing costs of e-data restoration and production on adversaries

- Data custodian interviews

- Regulatory and official guidance overview

- Preparation of litigation hold notices

- Preparation for and attendance at Rule 26(f) meet and confer sessions

Data processing and production of electronically stored information (ESI) in response to discovery requests

- Creation or modification of defensible corporate information and records management policies

- Counseling regarding specific document retention deadlines, statutes of limitation, and governing regulations

- Policy compliance auditing, advice, and assistance

- Policy best practices counseling and employee training

- Email and instant messaging use and retention policy development

- E-records back-up and storage counseling

Preservation and data collection plan preparation

- Integrated and uniform approach to e-discovery counseling and information management counseling issues set forth above

- Consistent uniform approach to discovery responses across jurisdictions

- Standardization of outside counsel e-discovery practices and strategies, including strategic motion practice designed to maximize the protections of the amended Federal Rules and local law

- Reduction in counsel fees for document review

Counseling on unique e-discovery practices, guidelines, and case law in diverse jurisdictions

One factor that strongly contributes to the effectiveness of the Gibbons E-Discovery Task Force is its “bench strength.” The Task Force includes litigators from each of the firm’s litigation practice areas, ensuring that, in addition to deep e-discovery knowledge, the involved Task Force member will always have direct, relevant insight and experience in the substantive area of law and type of case for which we are addressing e-discovery issues. Task Force attorneys are all practicing litigators, so they understand the “real world” challenges our clients face and how to craft the most practical and effective solutions to them. Moreover, the team’s information technology and knowledge management professionals provide advanced technical knowledge and hands-on IT implementation experience.

The E-Discovery Task Force is Co-Chaired by Mark S. Sidoti, who is widely recognized in this complex, still-evolving field. He is a member of the faculties of Georgetown Law School’s prestigious eDiscovery Training Academy and the eDiscovery and Digital Evidence Conference at the Sandra Day O’Connor College of Law at Arizona State University. Mr. Sidoti serves on the Board of Editors of Arkfeld on Electronic Discovery and Evidence, the leading treatise on e-discovery, and he is actively involved in numerous standard-setting organizations, including the Defense Research Institute’s (DRI) Electronic Discovery Committee (where he has served as Chair), the Sedona Conference Working Groups 1 and 6, and Electronic Discovery Reference Model (EDRM). Mr. Sidoti has published dozens of articles and given scores of lectures to practitioners, students, and technologists on e-discovery best practices. He has counseled clients on the gamut of e-discovery and information governance challenges, including as plaintiff’s counsel in the well-known Treppel v. Biovail case, which resulted in several reported decisions recognized as among the most important e-discovery opinions to date. Many other members of the Task Force frequently publish and lecture on e-discovery issues and enjoy outstanding reputations in the e-discovery community.

To supplement and enhance our services, the Task Force adds value in a variety of ways, most notably through the Gibbons Law Alert blog – www.gibbonslawalert.com – a regularly updated, comprehensive online resource offering practical perspectives and topical analysis of e-discovery and information management issues. In addition, our annual full-day E-Discovery Conference, held for firm clients each fall, covers a year’s worth of judicial, legislative, technological, industry, and related developments. Some of the most respected names in the e-discovery field, including former judges, e-discovery service providers, and representatives from leading corporations with cutting-edge e-discovery policies and procedures, along with members of the Gibbons E-Discovery Task Force and other renowned authorities, lead a variety of general sessions and break-out programs addressing new and ongoing critical concerns and issues.

- Engaged by one of the world’s largest hospitality services companies to advise on and formulate a protocol for a company-wide remediation project involving more than 90,000 back-up tapes.

- Served as counsel for plaintiff in high profile defamation and tortious interference case, Treppel v. Biovail Corporation, et al. Architect of motions resulting in the seminal e-discovery decisions reported at 233 F.R.D 363 (S.D.N.Y. 2006) (“Treppel IV”) and 249 F.R.D. 111 (S.D.N.Y. 2008) (“Treppel VII”), since cited in numerous court decisions, law review articles, and treatises, including Arkfeld’s Electronic Discovery & Evidence, Moore’s Federal Practice, and the Second Edition of the Sedona Principles. Several prominent e-discovery service providers selected Treppel IV as the top e-discovery decision of 2006.

- Served as co-counsel to a securities execution services firm that provides a unique approach to algorithmic securities execution designed for high speed market structures through proprietary technology, software, programs, and trading strategies in two related AAA arbitrations. In connection with a misappropriation and trade secrets action, succeeded in obtaining a detailed forensic review of Respondents’ computer systems, and, ultimately, an award of permanent injunctive relief and significant monetary and other sanctions for electronic discovery spoliation and other discovery violations. Created and obtained orders memorializing detailed protocols for forensic computer inspection, and presented all aspects of spoliation case at arbitration hearings, including forensic evidence and expert reports and cross-examination of adversary’s forensic experts.

- Engaged by a Fortune 100 company to oversee a comprehensive e-discovery service provider RFP process for a project involving approximately four terabytes of data and five participating full service providers.

- Engaged to counsel a multinational construction company on information management and e-discovery best practices, and assisted in substantial revisions to its information management and litigation hold policies.

- Engaged to counsel a multinational eyewear manufacturer regarding information management, litigation hold, and other e-discovery best practices; assess the company’s current IT infrastructure and litigation risk environment; and create a comprehensive information management policy.

- Engaged by a Fortune 200 pharmaceutical company to provide a formal opinion regarding e-discovery related risks regarding the company’s consideration of various options for upgrading its global telephone and voicemail systems.

- Engaged by a national telephone industry tariff filing and revenue distribution nonprofit to assist in the formulation of its corporate Litigation Response Plan, including litigation hold policies and procedures.

- Engaged as counsel to a multinational office and home products manufacturer regarding e-discovery counseling for ongoing class action litigation, as well as general information management and e-discovery best practices, IT infrastructure and data mapping, vendor selection, and relevant policy revisions.

Engaged by one of the largest multi-user container terminal operators in the world to assess the company’s current IT and information management infrastructure and create comprehensive information management and litigation hold policies.