e-Discovery

Sonnenschein Nath & Rosenthal LLP offers a full range of counseling and services in the field of
Electronic Discovery (e-Discovery), including helping companies respond to discovery requests,
subpoenas, and government investigations, and counseling them on developing in-house processes and capabilities to handle routine subpoenas.

We assist clients in every industry by working closely with attorneys who practice in a wide range of
areas, including regulatory compliance, information security, litigation, privacy, health care, finance, and intellectual property. With this diversity of expertise and breadth of experience, our e-Discovery team is able to provide our clients with the tailored services they deserve.

The Case for e-Discovery
Under the 2006 amendments to the Federal Rules of Civil Procedure, electronically stored information must be provided as part of any discovery request. Failure to produce or retain electronically stored information can result in significant sanctions, including:

• Preservation Order
• Financial Sanctions - fines and payment of costs
• Exclusion Order - excluding witnesses or evidence
• Adverse Inference
• Contempt
• Directed Verdict or Dismissal

Protection From Claims of Spoliation/Adverse Inference
Inadequate e-Discovery policies may expose a company and its employees to risk of charges that records were destroyed in an attempt to avoid civil liability. This risk comes in two forms. First, numerous courts have held that adverse evidentiary inferences can be drawn against a party that destroys records that are subject to a request for production of documents, or were foreseeably relevant to known litigation. Second, in many states there is a separate cause of action for spoliation of evidence.  Culling of records in conformity with an established records retention policy can help rebut an inference that the records were discarded because they were damaging or to otherwise avoid civil liability.

Litigation Holds
Companies must have in place effective procedures for suspending records destruction (whether pursuant to an established plan or otherwise). These procedures, referred to as “litigation holds” or “records holds,” enable companies to timely distribute word among their personnel advising employees not to discard records that may be needed for pending or anticipated litigation or investigations. Failure to issue a litigation hold promptly, and to enforce it effectively, can lead to civil and potentially criminal liability. Failure to have or properly implement such a policy can result in adverse inferences being drawn in litigation and substantial sanctions.

As a result of the Zubulake decision and the new amendments to the Federal Rules of Civil Procedure, companies are looking at creating internal processes to implement litigation holds to preserve records relevant to litigation, investigations, and audits. We have developed litigation hold processes customized to specific clients. These processes help our clients comply with their legal obligations under the rules while preserving information in a form that minimizes the cost of processing the information in discovery. A litigation hold process might include:

• Clear lines of responsibility within the corporate legal department for implementing a litigation hold.
• Guidelines for when and how to use outside counsel for litigation holds.
• Forms of litigation hold notices which enable notices to be issued quickly and efficiently.
• Processes for retaining e-mail messages needed for litigation in a form that minimizes discovery expense.
• Company-specific processes for dealing with automatic e-mail deletion software and preserving the e-mail files of people who leave the Company’s employment.

Respond to Discovery Requests, Subpoenas, and Government Investigations
Sonnenschein is one of the only national law firms with a full-service computer forensic and Internet
investigation lab. Our attorneys work closely with our forensic analysts to help clients respond to discovery requests, subpoenas, and government investigations in a timely and cost-effective manner.  Sonnenschein’s forensic lab supports litigators with timely and efficient analysis of electronic evidence, and our forensic analysts regularly comb through, identify, and produce documents and records pursuant to protocols set by our attorneys. By using in-house resources, Sonnenschein significantly reduces costs otherwise spent educating and retaining outside consultants. Should third-party vendors be needed, we have relationships with a number of technical consultants and can recommend a qualified vendor at competitive prices.

Prior Experience
Sonnenschein has experience in crafting data and records management solutions for a wide variety of clients. A list of representative client engagements is provided below:

• We provided comprehensive records management advice to a publicly held property and casualty insurance company that included assisting the company on principles of electronic records retention and helping the company to create records retention policies and schedules.
• We assisted a publicly held Fortune 500 retail company with the preparation of a comprehensive litigation hold process, including processes, checklists, and forms; and provided the company with general records management counseling.
• We counseled a Fortune 500 media conglomerate on records retention policy and schedules,
  electronic records management, and litigation hold issues.
• We counseled a major life insurance company on electronic retention and litigation hold issues.
• We assisted a health care company in responding to a federal subpoena for electronic data, including extraction of the data from the company’s servers and review for responsiveness and privilege.
• A Fortune 100 technology company retained us to provide counseling on records management and litigation hold issues.
• We advised a nonprofit center in the preparation of electronic discovery requests and protocols in support of litigation.