Practice Strengths

Baker Hostetler’s E-Discovery and Technology Team combines lawyers, litigation support professionals and paralegals with deep experience in complex litigation and investigations to provide comprehensive services across all aspects of discovery management. We provide advice at every step of the process, from pre-litigation through trial. Our Team currently manages the largest and most complex data set at issue in any single litigation in the United States—the liquidation of Bernard L. Madoff Investment Securities LLC. But we understand that discovery solutions are not one-size fits all and we are able to scale our technology and procedures to deliver cost-saving efficiencies to matters of all sizes, including internal investigations, government investigations, alternative dispute resolution processes and due diligence reviews.

Rule 26 of the Federal Rules of Civil Procedure and similar state rules impose obligations on clients and counsel to properly handle electronic data. Courts routinely hold that lack of technological savvy is not a defense to improper handling of electronic data. Monetary sanctions have been imposed against both clients and counsel for failure to comply with the rules. Moreover, courts have granted requests for adverse inferences, evidence preclusion and even to strike pleadings for failure to comply with the Rules.

Our E-Discovery and Technology Team can be there from start to finish, helping you with the selection and management of the appropriate technologies and best practices to achieve effective and cost-saving results. We believe that best results and maximum efficiencies are obtained when decisions concerning data and discovery are controlled in-house and we can assist with the selection and management of vendors consistent with that goal.

 

Pre-Litigation Counseling

E-Discovery Readiness and Response Programs

Proactive due diligence regarding a client’s information management processes, procedures, software, people and equipment can pay off in the long run. We assist with the assessment of a business’ systems, including data mapping. Proper readiness counseling can reduce costs in the event of litigation or a government investigation and will protect the client from discovery tort and spoliation allegations.

Document Retention, Disposal and E-Data Usage Policies

Having defensible policies and records management is critical in today’s business environment. Formally defining, effectively retaining and successfully archiving email and other electronic and paper business records is one of the most important tasks facing organizations today. We can help navigate statutory and regulatory records management requirements and build appropriate policies. Proper policies about records maintenance and deletion, the use of email, instant messaging systems and social media in the workplace can help insulate businesses from scrutiny during the course of litigation and reduce costs.

Litigation Hold

Our team can assist with the drafting and implementation of a litigation hold to ensure that data is preserved and protected in accordance with the rules and the case law.

 

Litigation Services

Initial Disclosures

Initial disclosures require a client to identify all sources of accessible, discoverable data and disclose them to the adversary. While this sounds simple, to make these determinations, the client must review its computer and electronic mail systems (including systems maintained for the client by third parties), determine how those systems are backed up and understand the costs of restoring data. Failure to do so has resulted in discovery sanctions. We help draft disclosures that are accurate and defensible.

Meet and Confers

Formal or joint discovery plans emerge from meet and confer sessions. It is imperative to have a command of your data and how it is maintained at this early stage in the litigation to contain the scope and costs of discovery and to ensure that your adversary is in full compliance with its discovery obligations.

Discovery Requests and Responses

Our team’s knowledge of email, computer and disaster recovery systems can help define the scope of discovery from the adversary. We also can assess the burden of the adversary’s requests and the privileges that must be addressed in discovery responses.

Subpoenas and Other Third-Party Requests

Our experience is not limited to U.S. litigation. We have experience with all forms of discovery devices, including third-party subpoenas and international discovery procedures, such as Letters Rogatory and Letters of Request. We handle subpoenas and information requests from Congress, the Internal Revenue Service, the Securities and Exchange Commission, the United States Environmental Protection Agency and other governmental agencies.

Search Techniques

In most litigation today, parties will formulate search terms and search syntax. With our extensive background in formulating and running searches, the E-Discovery and Technology Team can help develop effective and defensible search terms based on metadata, key custodians or dates and provide accurate search syntax to narrow and focus the review. Our experience in creating search terms can yield better quality document productions from adversaries and reduce the burden of searching overbroad terms. Proper culling mechanisms can significantly reduce the volume of documents to be reviewed.

Document Collection

We can assist in finding domestic or international forensic or scanning vendor(s); managing data collections, tracking and reporting; and media auditing to ensure that data is collected and preserved in a defensible manner while mitigating the risk of sanctions due to collection errors or the loss of metadata.

Managed Document Review

Understanding how data is processed or scanned, coding and unitizing scanned documents, handling exceptions and finding the right vendor for your document review is crucial based on the nature of the case/client data. Our team has experience with all major document review tools and can recommend the right one for the situation. We ensure that data is processed accurately and review and provide suggestions for handling exceptions—all while tracking these details in our internal case management system.

We manage and streamline document review workflow, monitor the productivity and accuracy of individual reviewers and document each phase of the review using our proprietary internal review tracker that assists us in documenting each phase of a document review. Search terms and/or privileged terms are tracked, along with the review workflow, associated tags, batching instructions, document counts for each phase of the review and the percentage of documents tagged privileged, responsive or non-responsive. Tracking specific details of each review allows us to run statistics in order to better plan and identify the number of reviewers needed and to estimate how long the review will run.

Dedicated Document Review Professionals

Our managed reviews are staffed by a dedicated group of highly qualified attorneys who conduct in-house document reviews. These attorneys are well versed in various document review platforms and review techniques and are exponentially more efficient than temporary document reviewers. Perhaps more importantly, however, is that the knowledge developed in the course of a closely supervised document review is managed internally within the firm and is a resource to the litigation teams handling the various cases.

Privileges

Selective waiver of privileged documents or work product can be a trap for the unwary. We help assess the impact of selective waiver and avoid situations in which a court may find a broad subject matter waiver as a result. Determining when to move to compel production of new privilege logs or specific privileged documents from the adversary can be an important strategic move, although the consequences must be carefully considered. We assist in analyzing the strength of privilege claims and the likelihood of success.

Private and Confidential Information

Under state and federal statutes, businesses are under an obligation to protect an individual’s rights to private data and medical information. Serious consequences can result if a business does not ensure that the proper arrangements are made to protect this information and the proper agreements are executed to maintain confidentiality should production be required. We can ensure that defensible and adequate security standards are in place.

Deposition and Interviews

We have developed various proprietary tools to assist in the preparation, tracking and review of depositions. Using these tools together with the transcript management in LiveNote minimizes expenses and administrative costs.

Confidentiality Agreements, Protective Orders and Case Management Orders

We have extensive experience drafting and reviewing confidentiality agreements, claw backs and peek agreements, nondisclosure agreements and protective orders.

Knowledge Management

Sharing information within the team is key in every case. We have created numerous internal and external secure websites to facilitate information sharing and knowledge management. We can assist in building a site for clients and attorneys to share case or client-related information or documents.

Expert Witnesses

Our team has developed a set of procedures to help ensure that prospective experts meet requirements, do not have any conflicts and have not given conflicting testimony in the past. We help manage and log the flow of information to testifying experts to prepare for production of expert’s reliance materials and avoid any privilege waiver issues before they arise.

Trials

At trial, our E-Discovery and Technology Team can assist by providing the right litigation technology support. We can help you prepare your case with creation of demonstratives, charts, pivot tables, deposition clips and other illustrative exhibits. In addition to trial preparation, we provide support on the road or in the courtroom with war room and courtroom audio/video, computer and Internet connectivity preparation and set up while preparing and presenting exhibits during trial.