Evolving methods of communication, advances in technology, and the myriad ways information is stored have drastically changed how businesses operate and litigate. Courts have ruled that most of these new means of communication, such as email, electronic documents, text messages, and social media, are all discoverable during litigation. As a result, successful outcomes in litigation frequently hinge upon the effective preservation, retrieval, exchange, and ongoing management of relevant electronic documents and data.
This is particularly true in Delaware, where the courts issue frequent rulings on eDiscovery and expect all attorneys to have a fundamental knowledge of the eDiscovery process. In less-experienced hands, poor handling of eDiscovery issues can result in needless disruption to a client’s day-to-day business operations while also causing litigation costs to rise. Ineffective approaches to eDiscovery can eliminate any litigation gains, even if the eventual result is satisfactory. When handled appropriately, however, effective eDiscovery can provide litigants with a substantial strategic benefit while effectively managing costs.
Morris James trains all new litigation associates to become proficient in the Morris James approach to document review and the discovery process. Attorneys receive continuing training on topics such as document preservation, collection, review, scope of privilege, and defensible drafting of privilege logs.
The eDiscovery group has instituted best practices to control costs while maintaining the integrity and defensibility of the process. We constantly monitor the development of eDiscovery case law and technologies in order to keep those best practices current and provide our clients and co-counsel with advice that not only saves money, but also allows for successful litigation outcomes.
Morris James also routinely utilizes data analytics to perform more effective collections, identify documents to be reviewed, and enhance the effectiveness of the document review itself. We utilize advanced clustering concepts to identify “like” documents and “thread” email groups together to ensure coding consistency. Finally, if the case calls for it, predictive coding may be utilized to both reduce total litigation spend and increase the quality of the document review itself.
Litigation Readiness Consulting
The eDiscovery group consults with clients who often engage in litigation in order to better prepare them for discovery. The goal is to put procedures and policies in place that will both reduce the cost of inevitable discovery while also improving litigation results.
The group offers advice on scope and length of retention policies, implementation of good preservation practices during litigation, consultation with employees on proper email and data storage habits, and advice on eDiscovery best practices.The group also provides assessments of various vendors and available eDiscovery tools.
Lead Discovery Counsel
The eDiscovery group works with various related Morris James groups in leading discovery efforts during any litigation. This includes the Corporate and Commercial, Intellectual Property, Employment, Bankruptcy, and Medical Malpractice groups. At the outset of any litigation, the eDiscovery group will consult with the client and client IT to develop a preservation plan that is tailored to the needs of the case. The preservation plan takes into account the type of matter, cost of the case, sophistication of the client’s IT systems, the client’s experience with litigation, the relevant jurisdiction, and the procedural posture of the case.
The eDiscovery group commences collection of documents only once it becomes absolutely necessary. Once a document request is received (or when it makes sense strategically to collect documents), an attorney from the eDiscovery group interviews all identified custodians in order to understand their role in the litigation and the documents or data they may have possession of or have created.
Following completion of the custodian interviews, a collection plan is drafted. This collection plan not only targets sources of data, but also a culling plan for reducing the overall documents to be ultimately be collected and reviewed. This culling plan includes various methods of reducing data, including the usage of search parameters, exclusion of certain data types, and narrowing of data repositories to be searched.
This collection plan also greatly assists the team with the meet and confer process that occurs with opposing counsel. A member of the eDiscovery group, along with counsel from another practice group, meets with opposing counsel to discuss preservation and collection scope and methods, custodian and data store identification, search term development and negotiation, and production format and timing. Following this meet and confer process, the eDiscovery group takes the lead in drafting and finalizing an ESI agreement between the parties.
Morris James has built a trusted vendor network that assists with forensic collections, data searching, hosting and production. If necessary, one of these vendors will be selected to collect the data outlined in the collection plan, host that data, and ultimately produce it while being directed by the eDiscovery group.
The eDiscovery group also leads and manages document reviews. Both eDiscovery attorneys are skilled in project management, and have led teams comprised of upwards of 80 contract attorneys in complex document review. Each case is evaluated to determine whether associate or contract attorney review is appropriate based on a variety of factors, including complexity of the issues involved, cost of the case, and total documents to be reviewed. We work with a variety of agencies to staff any document review as necessary.
Finally, Morris James’ associates and junior partners perform quality control review and have final sign-off on any and all productions and privilege logs that are sent to opposing counsel.
Special Discovery Counsel
Morris James will often lead the eDiscovery efforts on cases where others firms serve as “Merits Counsel. Firms that do not have the experience or the interest in dealing with eDiscovery have used Morris James to handle eDiscovery, allowing the Merits Counsel to focus on the development and implementation of the legal strategy.
Morris James will work hand-in-hand with Merits Counsel through every aspect of discovery, including the document collection and review, and provide the same level of service as if we were Merits Counsel. We will engage the appropriate vendors and staffing agencies, and work in concert with the client to ensure a defensible preservation and collection plan is implemented. Morris James will handle the day-to-day operations of the discovery, while keeping Merits Counsel informed with frequent updates. When serving as eDiscovery Counsel, our sole task is to support Merits Counsel, and we will not interfere with the merits of the action.
Third Party Subpoena Response
Third party subpoenas are now almost 100% eDiscovery based. Morris James is uniquely positioned to respond to these subpoenas as the only Delaware firm with an eDiscovery group. The eDiscovery group, along with a member of the practice group that is the subject matter of the subpoena, will first determine whether there are grounds to quash the subpoena. If there is not, we will then confer with the requesting party, and narrow the scope of the requests in order to reduce total spend.
The team will then follow a similar workflow as outlined above, with an eye towards communicating with any party who may need to assert any privileges over the documents in the third party’s possession.
Transactional Project Management
While the litigation world has largely become comfortable with electronic documents, some transactional attorneys still work with paper. Through the use of eDiscovery concepts these projects can be performed electronically, allowing attorneys to collaborate more effectively and reduce the overall costs of the matter.
Morris James has been tasked by transactional attorneys with leading non-litigation document reviews by applying project management and eDiscovery principles. The usage of eDiscovery principles in collecting and reviewing materials subject to a transaction can greatly reduce spend while delivering a superior product to the client.
Alternative Dispute Resolution
Our eDiscovery group also provides support to the members of the firm’s Alternative Dispute Resolution practice. Members of this practice group have been appointed by the Court of Chancery, the Superior Court, and the United States District Court to serve as special masters to resolve discovery disputes. Our eDiscovery group’s capabilities permits the special masters to be able to resolve discovery disputes that involve advanced eDiscovery concepts, including predictive coding, negotiation of complex ESI protocols, and disagreements over scope of document collection and production.
Discovery Counsel in Court of Chancery Litigation
- Selected to coordinate and lead eDiscovery for Delaware and New York counsel.
- Led collection and culling efforts of 8 terabytes of data.
- Successfully implemented various culling techniques to reduce reviewable data to under 1 million documents.
- Managed database access, ensuring that only certain counsel could access data it was entitled to view and that certain data was “walled off” from appropriate counsel.
- Advised and managed attorneys from three different law firms in document review and privilege log drafting.
Lead Counsel in Expedited Section 225 Litigation
- Consulted with counsel in a simultaneous action in which our clients were represented for other purposes, and collected and walled off documents in order to maintain privilege between parties.
- Analyzed privacy laws and coordinated with vendor to ensure that cross-border collection was performed in compliance with Safe Harbor 2.0.
- Led expedited review of documents with complex privilege issues, finishing review within a week and putting clients in a position to come to a rapid and favorable settlement.
Debtor’s Counsel in a High Profile Bankruptcy Matter in a Foreign Jurisdiction
- Identified various sources of data and repositories and put into place an appropriate preservation plan without access to company IT.
- Successfully narrowed collection from 100 custodians to 10 during meet and confer with opposing counsel, and reduced total documents to be reviewed from 18 million to 100,000 through various culling techniques.
- Led review of 100,000 documents by contract attorneys, making multiple productions to opposing counsel, thus allowing for a favorable settlement for our client.
Transaction Project Management in High Profile Spinoff
- Identified hundreds of boxes containing aged paper documents from multiple sites located throughout the country.
- Engaged a vendor to digitize all paper, adding metadata fields which captured various information during scanning to ultimately assist with document review.
- Led a team of fifteen internal transactional attorneys and paralegals in a large-scale document review.
- Coordinated with and managed out of state attorneys in review of documents from specific sites when necessary.
- Delivered multiple sets of documents to the client in order to assess background of various sites involved in the spin.
Led Third Party Subpoena Response in High Profile Chancery Matter
- Represented third party financial advisor.
- Conducted interviews with multiple custodians to identify potentially relevant information
- Met and conferred with Delaware and New York counsel and successfully narrowed ESI population by 90%.
- Utilized email threading to prioritize review and ensure consistency in privilege coding.
Lead Counsel in Foreign Jurisdiction
- Led meet and confer negotiations involving one plaintiff, two groups of defendants, and third party with a heavy document review burden.
- Early case assessment significantly reduced total documents to be reviewed by 95%.
- Document review involved multiple privilege analyses; documents needed to be analyzed for various levels as well as different types of privilege.
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