E-discovery (e-info℠)

Practice Area

Harris Beach was named as a Go To® law firm for litigation e-discovery in the In House Law Departments at the Top 500 Companies 2011 8th annual edition, from the publishers of Corporate Counsel. When the stakes are high, Fortune 500 corporations and top ranking law firms trust our e-info℠ attorneys and IT consultants to provide customized and comprehensive solutions to the new reality of complex litigation challenges.

The Harris Beach e-info℠ team offers a full range of integrated solutions to meet our clients’ needs including:

E-discovery solutions for Litigation Support

The Harris Beach e-info℠ Electronic Information Counseling and Management Practice Group has been involved in complex litigation for decades. As a result, we have developed a proprietary approach to large case management and have extensive experience in all phases of e-discovery. We offer integrated solutions ranging from technical assistance associated with back end document and electronic information collection and processing, to service as separate document counsel where our attorneys and IT consultants collaborate to provide a complete solution to your electronic and paper document needs. In any scenario, Harris Beach e-info team attorneys and IT consultants deliver cost-effective counseling and management.

There are a number of unique advantages to working with the Harris Beach law firm for e-discovery. First and foremost, our e-info team is led by attorneys and IT professionals who understand the legal and technological issues associated with electronic document preservation, collection, and production. With our law firm roots, we know what the legal requirements are, and work closely with you to meet your specific needs. Our experience working with many of the nation’s leading law firms helps organizations avoid the pitfalls of electronic discovery by providing the most current "best practices" for preserving, reviewing, and producing documents.

Working with the e-info attorneys and litigation support personnel at Harris Beach to handle e-discovery issues can provide the following benefits:

Litigation Holds

Organizations are increasingly required to respond to government investigations or litigation which require a litigation hold to preserve relevant records. Recent amendments to the Federal Rules of Civil Procedure (FRCP) expanded the use of a litigation hold to include the preservation of ESI as well as paper documents.

Our role as document counsel begins with the design and implementation of a cost-effective and legally sufficient litigation hold. This avoids the potential sanctions imposed for the destruction or modification of ESI after a hold should have been initiated, and the tremendous infrastructure burden that results from an over inclusive or poorly executed plan.

When a litigation hold occurs, Harris Beach e-info attorneys counsel clients on the legal requirements, and specifically what they have to do to maintain the data and minimize the risk of spoliation. We will tailor a solution that balances the need to preserve potentially relevant documents and data files with the nature and scope of the litigation. Equally important, we also help our clients identify which data repositories are not subject to the litigation hold to minimize the substantial impact any preservation effort has on the day-to-day functioning of their organization.

Litigation holds are very serious and often complex. An evolving strategy in litigation is to negotiate one’s adversary into an impossible preservation obligation, and subsequently make a motion for sanctions or spoliation once they fail. The general and technical media are now rife with horror stories of failed preservation efforts. The impact of the amended FRCP cannot be overstated. Businesses that fail to comply are subject to adverse procedural and substantive litigation rulings which are wholly independent of the merits of the legal dispute. To defend against this, a proactive posture is the best approach. Our team negotiates reasonable preservation orders with opposing counsel to reduce the risk of a spoliation charge or sanction, and also assists clients by ensuring that a both technically feasible and defensible litigation hold is in effect.

Our e-info attorneys can help your organization’s legal department generate litigation hold notices that will stand up to judicial scrutiny, and develop compliance programs to demonstrate that the best efforts were made to ensure compliance with the notice. Our group can also identify appropriate record custodians to receive this preservation notice.

ESI Data Preservation

We can help your organization identify the vast number and diverse information repositories found in most enterprise-wide computing environments. In open computing environments, ESI is found everywhere. In addition to the traditional places like personal computers and network drives, many organizations must also look to places such as third-party hosted applications, wireless handheld devices, personal Internet accounts, MP3 players, cell phones, USB drives, and other new sources which are adopted daily.

Our e-info Practice Group helps develop preservation strategies for databases where data is constantly changing and difficult to sequester or isolate. Our group’s professionals are also trained and experienced database programmers who can negotiate and communicate the solutions during Rule 26 “meet and confers” and formalize it as part of an agreement or proposed order.

Harris Beach e-info attorneys and IT consultants work together with the client’s in-house counsel and IT staff to develop an ESI data map, determine and document all data repositories, and provide counsel on the technological requirements to preserve potentially discoverable data.  We can assist with several different means of preservation ranging from “preservation in place” to creating a complete forensic copy of an entire computing environment. 

ESI Collection

Our e-info attorneys can quickly assess your organization’s computing infrastructure and develop a collection strategy that will preserve the integrity of the data being collected. All collected data will include full path information and document relationships, ensuring that it can be produced as it is kept in the ordinary course of business. We are sensitive to any workflow disruption the ESI collection process may cause. To minimize disruption ESI collection may have on the functioning of an organization, our group is equipped to image any personal computer hard drive in only a few minutes thereby allowing the computer to return to use as quickly as possible.

In 2006, the FRCP were amended to address certain issues related to e-info. The Rule 26 amendment was significant as it required that litigants discuss ESI at their initial discovery planning conference. A misstep at a Rule 26 conference could have a significant impact on the litigation. If electronic information is lost or produced haphazardly, the organization runs the real risk of Court imposed sanctions for spoliation or non-compliance. This risk is even greater today as the offensive use of a spoliation motion is increasingly becoming a substitute for a valid
legal claim.

An organization must ensure that it is employing best practices in the preservation and collection of ESI from its various record custodians, and in instituting a litigation hold to defend itself against a claim that it failed to preserve records properly. We help ensure that documents collected are segregated in terms of location and custodian and that the full native path is associated with each document as it was maintained by the organization in its ordinary course of business. Additionally, chain of custody information is logged, and all native files and metadata are maintained intact to avoid possible spoliation sanctions.

Our e-info attorneys can also advocate a realistic collection and production order at the critical FRCP Rule 26 conference. Our proven track record in this area reduces the risk that information will be missed and establishes a good faith effort should some records accidentally be lost or destroyed in the context of a Rule 37 sanction hearing.

ESI Processing

Our IT consultants process collected data so that it can be exported either to our litigation review application Introspect, or to a different hosted solution of your choosing. Our technicians can create load files for virtually any review platform along with any required metadata.

We have considerable experience processing e-mails from Microsoft Exchange and Lotus Notes servers. We can also process most file types in their native format and use the native application to generate a tiff version of that document for redaction and production purposes.

Our processing team has expertise in defining inclusion protocols including how to handle e-mail attachments and compressed documents, and how to define attachment ranges for electronic documents. These definitions can have significant impact on the number of documents which need to be reviewed and the effective up front negotiation of these issues can save hundreds of hours of review time.

Our skilled IT consultants can also help you develop and program culling terms which effectively limit the number of documents requiring review to just those reasonably related to the litigation.  We can assist in developing burden affidavits to show how the inclusion of certain key search words can impact the cost of the review and result in either an under or over inclusive review set.

ESI Review

Harris Beach attorneys, paralegals, and IT staff review, categorize, and code data using an enterprise version of industry-leading Introspect software. This web-based software allows for the native review of ESI and the sharing of that information with clients and co-counsel through secure encrypted Internet connections. By hosting our own version of this software, we are able to perform queries and access the back of the document database to generate more comprehensive reports than firms which rely upon other companies to host their ESI.

Depending on your workflow criteria, we can create review sets of any size and present to your reviewers only one instance of any electronic documents for coding. This applies even when your production only allows for custodian level de-duplication. This technology enables the inclusion of multiple copies of the same document to replicate how each custodian actually maintained their files for witness preparation and review, yet only requires coding of one instance of the document which periodically cascades that coding to all other identical documents. This breakthrough in e-discovery efficiency significantly reduces review and production costs while still offering the “look and feel” of the documents as they were originally maintained.

Our review software also provides state-of-the-art metrics and reporting allowing team leaders to evaluate the rate and accuracy of review for each coder, forecast the total time to completion, and estimate the number of reviewers needed to meet production deadlines.

Document production can be made in any format required such as producing documents as native format files or as TIFF images with a comprehensive load file that includes all the required metadata and searchable text.

Working in Conjunction with IT

The attorneys who comprise the e-info Practice Group are well-versed in both their legal practice areas and the computing environments utilized by most organizations. As such, they can bridge that critical gap between the legal and the IT groups of your organization.

Our attorneys can also serve as Rule 30(b)(6) witnesses if necessary and testify about the organization’s data structure or the preservation and collection efforts made in connection with the litigation. This service may prove invaluable when the company lacks sufficient IT professionals to testify to these issues, or when the litigation requires expert testimony with little time to prepare.

Database Management

Beyond performing document analysis, our IT professionals are skilled in database development and management. They routinely help trial counsel develop Oracle, SQL, and Access relational databases to organize key elements of their legal claims. For example, in a toxic tort case, we developed proprietary SQL databases that tracked individual exposures at various locations over time and used the data to establish key relationships between different claimants, their medical conditions, and exposure.

Our database programmers have also extracted relevant information from a client’s database to create a new database with just the information germane to a particular litigation in a form that was acceptable and useful to our adversary. In doing so, they eliminated many privilege and relevancy objections.

Enterprise Content Management (ECM)

We also have technology that can perform enterprise compliance searches as part of a due diligence effort or an internal compliance program. Our attorneys and para-professionals are familiar with many of the applications available for ECM (Enterprise Content Management) such as e-mail archiving, and assigning retention periods to documents and e-mails at the time they are created or sent.

IT Certifications

A number of our IT professionals hold computer forensics and security certifications including Certified Computer Examiner (CCE) and Certified Information Systems Security Professional (CISSP).

Why Harris Beach?

Having Harris Beach manage all of your organization’s document productions and litigation holds enables the firm to become extremely familiar with the IT systems in place and consequently more effective advocates when negotiating Rule 26 preservation orders, representing IT directors at FRCP 30(b)(6) depositions, and reducing the likelihood of the inadvertent destruction of data due to lack of familiarity with the systems. Our e-info attorneys and IT professionals take pride in their ability to provide cost-effective, comprehensive e-discovery solutions for litigation support in the electronic age.

Electronic Records Management Solutions

We have witnessed an exponential growth of ESI over the past several decades. ESI, such as e-mails, electronic document and image files, spreadsheets, and other virtual computer-based data, has given rise to new legal challenges and liabilities in both non-litigation and litigation situations. Consequently, electronic records retention and management is more important than ever before.

The Harris Beach e-info℠ team provides electronic information counseling and management to help your organization save money and reduce risk by:

• Improving the efficiency of your records management operations
• Developing “best practices” management and retention policies that include ESI
• Reducing the amount of extraneous or redundant ESI
• Retaining only business records required by law or operation
• Safeguarding important business transactions
• Preparing you for a potential regulatory or legal action

Our e-info team is led by attorneys and professionals who understand the legal and IT issues associated with electronic records management systems. Their extensive experience in records management coupled with decades of litigation experience can provide unique insights into efficient and cost-effective records management solutions.

The Impact of the Federal Rules of Civil Procedure (FRCP)

In 2006, an FRCP amendment expanded the definition of “business records” to include ESI along with traditional paper records. This change has had dramatic implications for many organizations’ policies and procedures which now require modification to ensure compliance. A well planned and executed information management or document retention policy which embraces ESI is the best way for organizations to demonstrate compliance, good faith operations, and litigation readiness. A compliant records management policy also prepares organizations for regulatory proceedings, auditor’s reports, and accounting requirements, as well as numerous other business transactions such as mergers, acquisitions, or due diligence inquiries by banks and insurers.

Why Should Your Organization be Concerned with ESI?

Without a formalized records retention policy that includes consideration of ESI and ensures ongoing compliance, a substantial percentage of your organization’s litigation budget will go toward gathering and producing documents rather than focusing on the actual merits of the defense. Much of today’s litigation budgets are devoted to the localizing, collecting, indexing, and de-duplicating all of the ESI created.

The Harris Beach e-info team can help proactively protect an organization by creating a business culture sensitive to the legal ramifications of electronic information, instituting a life cycle to documents, and positioning the organization to minimize the cost of future litigation. One way we do this is by identifying and eliminating as much as 40% of the electronic content an organization presently stores, yet which serves no business purpose. This helps ensure that the content never comes under the microscope of litigation.

Another interesting industry standard is that nearly 80% of e-mails retained are not business records and therefore do not need to be retained. Most of these non-business records are old drafts, duplicates of documents stored elsewhere, personal correspondence unrelated to any business venture, or transient memoranda that if communicated by paper would have been discarded shortly after they served their useful purpose. Instead, e-mails are kept, since it is often easier to keep or archive a document than it is to make the conscious decision to delete it and run the risk that the information might one day later prove useful. 

Strategic Information Records Management Counseling

Now that ESI are understood to be business records, organizations need to develop systems that allow them control over the access and disposition of these documents rather than leaving that control to the whim of a single employee. Without conducting a full sweep of e-mails and personal computers, most organizations are unaware of their employees’ ESI. This departs radically from the control exerted over paper documents which may be stored in a highly secure file room. Even the most secure data, when stored electronically, may be freely available to anyone with a USB drive or any other removable media.

If an organization does not have a proper records management program, it may be putting significant business transactions at risk – a deal may not happen or the price may be adversely affected because of the condition of the records. The organization may also face increased risks in the event of future litigation.

Beyond risk reduction, organizations realize tremendous operational efficiency with compliant records management policies because their information repositories are not cluttered by stale or redundant files. Organizations may find that similar information is being stored in multiple locations. Uploading these repositories with duplicate information adds significantly to operational expenses. Effective records management eliminates inefficiencies and can realize greater profits for your organization.

How Many Files Are There?

From a recent collection involving 23 terabytes (TB) of data, we determined that the average user in this litigation was a custodian of approximately 17 gigabytes (GB) of electronic information, which translated to over 238,000 pages. This data was archived in various places including network folders, desktop “C” drives, and transportable media such as USB drives. All of this information was potentially discoverable if germane to litigation or a subpoena.

How Does an Organization Handle the Volume?

Most of the 17GB stored by each person is comprised of image files and e-mails. The e-mails are complex since they are often a hybrid format – the e-mail itself, plus an attached word processing file or spreadsheet. As a result, it is difficult to benchmark accurately how much information each user may truly store.

Creative collection techniques can usually cut the 17GB amount down to 1.5GB per user through restricting content by dates or by using certain filters to exclude these documents from the review. Still, on average there are roughly 155,000 pages per custodian in litigation involving discovery of electronic records.

This volume raises several challenges. First, there are the operational issues of locating all the information and ensuring that it is preserved during litigation. Memory sticks can hold 32GB of data or up to nearly 7,621,000 pages of documents; however, they are small and easily lost.  Another challenge is that electronic information is somewhat paradoxical because it tends to persist long after attempts are made to delete it, while also being fragile and simple to change. The result is that it is easy to destroy or modify relevant documents and run the risk of spoliation sanctions during litigation. Maintaining this volume of information also adds significant cost to the litigation. The speed at which attorneys can review pages varies with the litigation and the nature of documents, but the volume of electronic information maintained impacts heavily upon the cost of the review.

Finally, there is a certain inability to control the content of that much information. Organizations face exposure simply due to unfortunately worded e-mails or from the failure to properly secure private and confidential information. Consequently, most organizations now treat electronic records with the same sensitivity and respect as they have customarily treated paper documents.