eDiscovery & Document Retention

In a world of expanding data and discovery, Benesch’s eDiscovery Team is committed to participating in thought leadership and education so as to help improve the legal landscape while assisting our clients to improve quality and efficiency in their eDiscovery processes. Our eDiscovery Team is led by Co-Chairs Tom Lidbury and Andrew Fiorella, and includes approximately 15 attorneys across all of our offices, as well as dedicated litigation support professionals and a project management and efficiency professional.

Nearly all communication and critical transaction information is stored electronically in today’s business world. While email, databases, network data shares and Cloud storage all enable business to react more quickly and efficiently in the marketplace, this data presents unique obligations in the climate of business litigation. At Benesch, we partner with our clients to navigate both legal and technical challenges of managing electronically stored information (ESI) in a defensible fashion. Areas in which our attorneys can provide critical expertise include the following:

Document Retention – Given the volume, variety and volatility of 21st Century corporate data, a company can incur substantial risk if it does not have an electronic document retention policy. Current case law holds a company liable if certain ESI is deleted or altered, even inadvertently, once that company is aware of a potential legal dispute. The court can instruct a jury to regard missing information as adverse to the Company’s claim or subject the Company to more severe sanctions of evidence spoliation. Moreover, criminal liability is also a risk of not having an electronic document retention policy under certain federal laws. A well-vetted document retention policy and implementation can significantly reduce the risk of exposure to these potential severe consequences.

Identification/Preservation – Benesch’s Litigation Practice Group is experienced in assisting clients with defensible ESI preservation plans and these plans extend beyond simply crafting and implementing litigation hold notices. The initial step is to develop a comprehensive understanding of the Company’s data systems, locations and custodians. A defensible preservation strategy involves proper documentation of any preservation notifications as well as the steps required to ensure compliance. This may include written confirmation from data custodians, documentation of preservation techniques employed by IT and routine reminders of preservation obligations.

Data Collection – At some point, ESI that is potentially relevant to the matter must be harvested from client systems. A variety of factors must be considered when determining collection methodology including: the amount and type of data to be collected; the expertise of internal IT resources; case exposure; sophistication of opposing counsel/requesting parties; and case jurisdiction. Collection is one of the first areas where significant cost savings can be achieved. Through careful evaluation of the above factors, Benesch’s eDiscovery Team can craft a collection strategy that is both defensible and cost effective.

Data Processing – While it is always the goal to collect data as narrowly as possible, it is not possible during collection to eliminate all duplicate or potentially irrelevant information. This fact, coupled with often strict guidelines regarding the production of ESI, illuminate the critical nature of a thoughtful protocol for processing ESI. Processing involves such tasks as document de-duplication, metadata and text extraction, removal of non-user created files, and identification of potentially relevant data through the use of keyword or other search strategies. ESI processing is often conducted by trusted third-party vendors utilizing specialize software that can help increase the speed and accuracy of data culling, thus reducing processing costs. A well-crafted processing protocol can significantly reduce the volume of documents requiring attorney review, resulting in further cost savings over the lifecycle of the matter.

Document Review - At Benesch, our attorneys recognize that document review is often the most time-consuming and expensive portion of any piece of litigation. For that reason, a number of strategies are employed to effectively manage these costs. As outlined above, one of the most effective strategies is limiting collection and designing a rigorous search strategy that reduces the volume of documents that even qualify for review. Review is typically conducted with documents in their native format using litigation database software that incorporates time-saving features such as bulk document tagging, shortcut keystrokes, and automated document family coding. For larger volume matters, contract attorneys may be considered for first-level review. These teams are supervised by a senior attorney with a sophisticated understanding of the case but they can provide the initial culling of non-responsive material at as significantly reduced rate. Our eDiscovery Team will also evaluate the benefit of employing leading edge computer-assisted review technologies. While not suitable applicable to every matter, these technologies can combine critical attorney decision-making skills with computer pattern recognition to reduce both review time and expense.