The 2006 amendments to the Federal Rules of Civil Procedure weren't news to us. Sutherland lawyers and professional staff have been managing electronically stored information ("ESI") for the last 25 years in civil litigation and government investigations.
We were early adopters, embracing technology in discovery and in the courtroom in the early 1980s, when we worked with a major insurance company to store data on its mainframe computers for use in shareholder litigation and a series of reinsurance arbitrations. Our lawyers first used a computerized database at trial in 1984.
Our ESI experience since then includes:
- Cutting discovery costs through customization. Through careful analysis of client documents and filing systems and opposing party materials, we consolidated millions of pages of discoverable material into a streamlined, searchable database for use in trial and arbitration. This process saved our client hundreds of thousands of dollars as compared to expenditures by the opposing parties and outside quotes for the same service.
- Collecting and using ESI around the world. In construction litigation, we assembled databases of millions of pages of documents collected from locations around the world and used them at hearings held in the Americas, Asia and Europe.
- Satisfying the demands of regulators and prosecutors. We supported Hart-Scott-Rodino pre-merger reviews by producing databases containing large volumes of corporate documents in the format required by the Department of Justice, with minimal interruption to the companies' ongoing operations. We also have advised broker-dealers and other regulated companies on e-mail retention compliance.
- Handling emergency forensic cases. To protect trade secrets from misappropriation by a client's competitor, we obtained a TRO requiring immediate preservation of ESI, followed by a preliminary injunction requiring forensic review of all data storage devices and comprehensive keyword searches. This effort resulted in discovery of ongoing communications between the competitor's employee and the client's key supplier.
- Automating review. We use innovative software to automate coding and initial review of databases containing millions of pages of electronic and scanned paper documents in professional liability, securities enforcement and other major defense cases.
- Consolidating essential ESI from large organizations. We regularly represent major national and international businesses with multiple locations and develop ESI collection plans that identify and consolidate all responsive ESI. For a major securities broker-dealer client, we worked with other outside and inside counsel to construct a database containing hundreds of millions of documents consisting of analyst e-mail concerning numerous stocks that were the subject of customer claims. This database is used by all outside counsel defending such claims against this client.
In addition to addressing e-discovery issues in litigation, we are committed to finding creative ESI management solutions to help free clients from unnecessary information retention and to reduce costs to clients when litigation arises. We understand that document retention policies and schedules aren't "one size fits all," but must be tailored to industry practices and regulations.
We strive to give our clients the fullest value possible from their ESI collections. We share litigation databases with our clients and co-counsel, using extranets and Web-based programs such as iCONECT and Sharepoint, and have built common repositories of ESI for clients who face multiple cases arising from a common set of practices or events. We use paperless databases to manage pleading files, correspondence and discovery documents, all of which can be opened to direct client access.
We don't simply rely on e-discovery consultants to do this work. We have a dedicated full-time litigation support staff, not just IT staff who help us with electronic discovery on the side. These professionals have decades of combined experience supporting electronic discovery efforts using in-house database tools and working with well-known, highly qualified e-discovery vendors.
Sutherland attorneys remain at the forefront of the evolution of ESI through participation in The Sedona Conference, the nation's leading group of lawyers, consultants and jurists addressing ESI-related best practices.
We have written articles addressing e-discovery that have been published in the national media. We have provided clients with early analysis of the amended rules and their practical effects and participated as panelists in forums addressing the rules changes.
We continue to train all of our litigators and paralegals in both the legal and technical aspects of e-discovery. Our team includes lawyers with formal training and experience in the information technology business as well as seasoned litigators who know how to use this information at trial.
For more information, please visit our E-Discovery Web site.
Our litigators and paralegals have experience handling electronic documents as part of an overall discovery plan. We also have an active Electronic Discovery Committee, which keeps all of our professionals informed about new developments and acts as a resource for specific questions and challenges. The members of the Committee are:
Jennifer W. Fletcher: Jenny is the team leader of the Construction Industry Practice Group. As lead counsel in many complex construction cases, Jenny was an early leader in electronic document management and e-discovery. She recently led the discovery effort and data management for a complex litigation and ultimate jury trial involving numerous parties, millions of documents, and hundreds of millions of dollars claimed. Through careful advance planning, her team accomplished the client’s goals at half the cost of competing estimates. She is the co-author of the introductory chapter of ABA Discovery Deskbook for Construction Disputes, which outlines steps for organizing and managing discovery in complex cases.
Ann G. Fort: Ann’s experience as an intellectual property litigator includes managing multi-jurisdictional, multi-location collections of ESI under budget constraints. She also has obtained emergency ESI preservation orders and used forensic techniques to obtain key evidence in trade secrets misappropriation cases, and has advised clients in activating litigation holds and electronic discovery preparedness. Ann is the Chair of the firm’s E-Discovery Committee.
Cheryl L. Haas: Cheryl’s practice focuses on defending clients in civil and criminal securities litigation and in administrative proceedings initiated by securities industry regulators as well as advising clients on compliance with federal securities laws and regulations and self-regulatory organization (SRO) rules. She is knowledgeable in document retention requirements mandated by the Sarbanes-Oxley Act and other laws and regulations. Cheryl’s clients utilize various forms of electronic data systems, held in multiple locations and often archived differently in each location. Cheryl regularly advises her clients on how to implement “litigation holds,” how to gather, review and produce documents efficiently to avoid violations of applicable laws and regulations, while keeping costs to a minimum. She also has extensive experience working with third party vendors in the e-discovery area.
Lena H. Hinton: Lena’s work as a litigation paralegal specialist has focused on large case management for 30 years. In that role, she is charged with analyzing the case needs and developing strategies for collection, processing, vendor selection (where applicable), review and production of client documents, hard copy and e-data, as well as opposing parties’ productions. Her focus is to maximize the use of cost-effective technology where feasible. She is a member of the firm’s E-Discovery committee and has been instrumental in developing the use of computerized databases for the firm over the past 20 years.
Gregory S. Kaufman: Greg’s practice focuses primarily on securities litigation and regulatory enforcement. Greg has a special focus on e-discovery issues. He assists clients with addressing record retention issues, e-communication policies, litigation hold procedures and e-discovery best practices. In addition to being a member of The Sedona Conference, he is a member of the firm’s E-Discovery Committee. Greg also writes and speaks about e-discovery issues.
David A. Reed: David practices in the firm’s Intellectual Property group and is experienced in researching, reviewing and producing ESI. He has met with electronic data management and IT personnel of clients regarding document retention policies and document collection. David has also assisted in preparing and defending depositions of IT personnel on e-discovery issues.
Carlos Santana: Carlos is the Litigation Support Coordinator for Sutherland and has worked with the firm since 2000. He has experience supporting cases in the areas of SEC investigations, DOJ inquiries, intellectual property, contract disputes, acquisitions and divestitures, and with trials and arbitrations. As the firm’s Litigation Support Coordinator, Carlos manages the Litigation Support Database team. He also manages the new case consultation for document databases, collection and processing of electronic data, coordination of forensic data collection, trial presentations, and off-site war room support. Carlos has worked with Sutherland’s attorney teams and clients to develop document image databases for discovery review. Additionally, he has worked with clients and counsel to develop processes and procedures to identify where discoverable data is located and to ensure the proper chain of custody when necessary. He has met with government agencies and opposing counsel to discuss the exchange of electronic evidence and the structured standards for those exchanges. Carlos is also responsible for negotiating the best price available with vendors for location and vetting of software that will increase productivity and reduce costs for our clients.
© 2013 Sutherland Asbill & Brennan LLP