Focus

Our attorneys deliver creative data security and risk management solutions for enterprise organizations who depend upon Electronically Stored Information (ESI) to conduct their business. By leveraging our strategic partnerships with computer forensic examiners and technology consultants, we are able to provide scalable disaster recovery and litigation readiness plans that are uniquely tailored to the particular business needs of our clients. Should a client find itself involved in litigation, or subject to a regulatory investigation or inquiry, our ESI attorneys work seamlessly with the firm’s Litigation Practice Group to manage all aspects of the e-discovery process with unparalleled efficiency.

Overview

More than 16 billion e-mail messages are sent and received each day in corporate America. For most companies, the vast majority of the information and documents they rely upon to conduct their business exist purely in electronic format, with no paper counterpart. A typical mid-sized company has 20-30 terabytes of information stored on its servers which, if printed out in paper format, would amount to more than 10 billion pages and require a fleet of semi trucks to transport. Further complicating matters is the fact that the company’s electronic data – or ESI – can be stored in a vast array of media, including servers, workstations, hard drives, laptops, thumb drives, memory sticks, PDA’s, portable e-mail devices (e.g., BlackBerry), cell phones, MP3 players, cameras, as well as a host of legacy systems.

Once a company becomes involved in litigation (or a regulatory investigation, inquiry or audit), it must quickly review and analyze its stores of ESI to determine the information and documents that are relevant, responsive, and non-privileged. Companies are legally required to protect and preserve relevant ESI as soon as a lawsuit or investigation is anticipated. The inadvertent deletion of relevant data can result in outcome determinative fines, sanctions, and even default judgments. Thus, a company that has failed to critically evaluate its ESI risks and prepare a comprehensive litigation readiness plan is at a significant disadvantage from the start. It is for this reason that general counsel at some of the largest and most respected companies have identified e-discovery as the single greatest threat facing their companies today.

An ounce of prevention is worth a pound of cure. The best way to manage a crisis is to prevent it from happening in the first place. A company that has invested in a well-crafted ESI management and litigation readiness plan will be able to timely respond to e-discovery requests with minimal disruption to its routine business and IT operations. Once a plan has been implemented, complying with even the most burdensome e-discovery requests – and avoiding sanctions – becomes as simple as following the plan. Instead of scrambling to assemble a response team and crippling your IT personnel, you can devote your time to more productive matters, such as managing and growing your business.

The road to spoliation (and sanctions) is paved with good intentions. The current judicial and regulatory landscape is one of zero tolerance for the spoliation of relevant electronic data. Very few companies possess the necessary skills, tools or experience to proactively manage their ESI and avoid the inadvertent deletion of electronic files. Companies need trained legal professionals and technology experts to assist them in navigating these treacherous waters.

Leave no stone unturned. Once a company is involved in litigation, complying with the court’s e-discovery rules is just one ingredient in the recipe for success. In addition, the company should not lose sight of the fact that its opponent is also subject to the same e-discovery rules. The company’s legal counsel should therefore make sure they are taking full advantage of those rules and forcing their opponent to provide all of the ESI and metadata required under the rules. Oftentimes, our ESI attorneys are able to leverage the e-discovery rules – and our opponent’s failure to adequately plan for ESI-related disputes – to expedite the favorable resolution of a controversy.

Services

We offer a wide variety of services related to the management and preservation of ESI, including:

• Counseling and Risk Management. We assist clients develop and implement effective workplace procedures in order to manage their electronic data, thereby reducing the cost of e-discovery compliance before litigation even begins. Together with our team of specialized computer forensic examiners, we work with your information technology and human resources personnel to create robust ESI policies (such as data management policies, document retention and destruction policies, computer usage policies, employment manuals, employee handbooks, and litigation hold plans) that are uniquely tailored to the industry regulations and business needs of your organization. An important component of these policies is the establishment of automatic litigation response protocols designed to preserve relevant evidence and insulate your organization from spoliation claims. We also provide on-site training programs to ensure your employees understand and follow your ESI policies and procedures.
  
  
• Litigation and E-Discovery. The discovery and production of data and electronically stored information has become a critical factor in every lawsuit and regulatory investigation. Our ESI attorneys will work with you to develop a specialized litigation plan to address the retention, collection, review and production of electronic data. Together with our technology consultants, we quickly identify the information and data needed to participate in the early discussion of e-discovery issues required by the Federal Rules of Civil Procedure, and to strategically plan discovery responses. We assist clients in preparing and tracking litigation hold notices, and developing a feasible and defensible ESI collection plan. Once e-discovery requests are received, we utilize cutting-edge, proprietary software that allow us to review and analyze ESI in a fraction of the time – and at a substantially lower cost – than traditional review methods.
  
  At the same time, we are acutely aware that ESI requests and e-discovery compliance is a two-way street. Our industry experience and intimate familiarity with the governing law gives us a significant information advantage over our opponents. We are able to effectively use e-discovery rules as a litigation sword, to ensure our opponents have truly produced all of the information and electronic documents (including crucial metadata) in the quantities and format that they are required to provide, and which you are entitled to receive. An e-discovery battle can be cost-prohibitive, and the results outcome-determinative – consequently, we fight to win.
  
  
• Transactional Applications. Clients look to our ESI attorneysTs to satisfy a number of due diligence and regulatory requirements unrelated to litigation. Our services include:
  
  
  • Due diligence review of ESI related to business transactions
  • Sarbanes-Oxley (SOX) compliance review of electronic data, e-mail and other internal documents
  • Privilege review of ESI, including segregation of privileged materials and production of privilege log
  • Targeted review of electronic data for internal investigations and operational effectiveness assessment

Our ESI attorneys have been assisting clients with the unique problems posed by electronic data for decades. We have forged deep relationships and strategic partnerships with leading technology consultants and forensic examiners. As a result, we deliver maximum value at minimum cost. Where appropriate, we can package our services and offer flat-fee and creative pricing solutions. Whether you are currently involved in a lawsuit or investigation, or if your business is subject to regulatory record retention obligations, Levenfeld Pearlstein stands ready to assist you with your ESI-related needs.

Case Studies

The following case studies help illustrate the services provided by our ESI attorneys:

ESI Case Study 1
ESI Case Study 2