Electronic Data Discovery (EDD) Group
Frost Brown Todd has more than 30 years’ experience in assembling document review teams for specific clients or matters. In 2008, the firm established the EDD Group as a standing team of experienced attorneys to provide superior resources in the review and analysis of electronically stored information, as well as traditional document review.
The Challenge: Every Employee a Warehouse
More than a generation into the personal computing era, electronic communications have placed up to a warehouse of information in the hands of each employee. The challenge, particularly in heavily regulated or litigious industries, is to control the time and costs of identifying, retrieving and analyzing relevant information from these portable warehouses. We work with clients to meet these challenges through front-end solutions which control the creation and management of records and then, with cost-effective teamwork, identify and analyze relevant information as necessary for due diligence, litigation or other proceedings.
The Proactive Solution: Records Compliance
Whether phrased as “records retention,” records compliance” or “information governance”, a key to the cost-effective control of information in formal proceedings is to proactively identify and manage it before proceedings begin. We help clients design and implement records compliance programs that meet their specific legal and business conditions.
Hundreds of possibly applicable legal retention periods and scores of legal requirements or business conditions affect how information should be retained or disposed, and a records compliance program must be tailored to these particular needs. We have worked with clients to accomplish precisely that objective for nearly a decade. Within the last several years alone, we have counseled clients in the automotive, banking, food and beverage, healthcare, insurance, manufacturing, nonprofit, professional services and publishing sectors.
When advising on records compliance programs, we provide four tiers of service:
- Where a non-lawyer consultant has been engaged to advise on records compliance, we review the scope of work to assure that the client will receive a meaningful delivered product that is likely to address its stated needs. We also review resulting records retention schedules and any related legal hold procedures to assess their adequacy in the client’s actual legal environment.
- For a records compliance program that has evolved over time, we provide an assessment of how evolution matches the client’s current organization and legal environment. This assessment includes identification of any apparent gaps in the program and general suggestions of how they might be filled.
- We also work with clients who have already identified limitations in their programs, or want us to follow up with an assessment of specific remedial measures. In these situations, we analyze the business structure and, when necessary, conduct limited employee interviews. These steps result in recommendations both to remedy existing issues, as well as to monitor programs for future changes in business or legal conditions. Where a client wishes to consider integrating archiving or other electronic records compliance solutions, we assist with vendor identification and selection processes.
- Finally, we develop and implement records compliance programs for clients who have no defined program in place. In these situations, we analyze the business structure and legal environment, interview key employees and sample categories of key business records in order to develop a program with retention schedules. If a client considers integrating archiving or other electronic records compliance solutions, we assist in the vendor identification and selection processes. This tier of service also includes procedures for training officers or other employees charged with ongoing responsibility for the program, and monitoring future changes in business or legal conditions.
A sound records compliance program, particularly one that integrates electronic records, pays large dividends in litigation or other proceedings. A program which classifies key records and provides proper life cycle management for business information can significantly reduce the volume of information that may be needed to handle an immediate response to a proceeding. A sound program also allows management and counsel to quickly pinpoint the business units and individuals most likely to have relevant information. This can save significant amounts of both time and money by excluding irrelevant departments and data stores from a pending matter. Finally, a sound program allows management and counsel to respond quickly if the scope of a proceeding changes.
The Due Diligence Solution: Dedicated Precision in Confidential Review of Privileged or Sensitive Materials
Beyond the ordinary course of business, both transactions and special inquiries require precise, rapid review of privileged or other sensitive records to promote strategic business decisions and pass regulatory muster. Our experience encompasses multibillion-dollar mergers and acquisitions, internal investigations and informal dispute resolution proceedings. Instead of relying upon ad hoc gatherings of associates or paralegals, our dedicated EDD Group emphasizes the precise, high-volume review of privileged or other sensitive materials. Sample engagements have included the following:
- Statewide diligence review of deed descriptions in preparation for a merger of multiple public utility companies, including making filings and correcting filings of public indentures.
- Terms and conditions review and analysis for multinational supplier agreements in the automotive industry.
- Confidential internal investigations of potential claims arising from disputes and regulatory issues.
- Witness interviews, investigation and document review for successful mediation of a dispute between a public utility company and telecommunications provider.
- Terms and conditions review and analysis for service agreements in the outsourced customer relations and billing industry.
- Privilege and proprietary issues review and analysis for merger and acquisition activity in healthcare and consumer products industries.
The Litigation Solution: Controlling Discovery Costs
Even in the best records compliance programs, most of the “possibly relevant” information is likely to be insignificant to resolving the specific issues in dispute. By using FBT’s EDD Group for document review and analysis, we funnel the most relevant information to the litigation team or other decision makers for considerably less than standard hourly rates. During the last 10 years, additional resources have become widely available in the forms of computer-assisted and offshore contract review. We have worked with both of these resources, which may provide additional time- and cost-saving advantages when appropriate. For computer-assisted (or “augmented”) review, both technology and consulting provider(s) must be measured against the types of data in question and the need for precision in any particular case. Offshore resources must also be vetted for reliability and agreements must include appropriate assurances of compliance with applicable U.S. law (such as HIPAA or Gramm-Leach-Bliley), as well as supervisory requirements of U.S. legal ethics rules.
Solutions in Action
The EDD Group has worked on more than 100 matters with attorneys in almost every office of the firm. Our work has included business litigation, business transactional and due diligence analyses, mass tort and insurance defense litigation, and criminal/regulatory investigations:
Depending upon the needs of the particular trial team, the EDD Group’s work has extended beyond document review to working with e-discovery vendors to customize databases and production tools for particular issues and evidence in the case. Our work has also included the identification and analysis of material evidence, assistance in both lay and expert witness preparation, assistance in briefing evidentiary and related legal issues, and the preparation of objection logs to meet the requirements of particular jurisdictions for logs themselves to provide a prima facie basis for privilege, work product or other immunity from discovery. Besides contract disputes, our work has included cases involving antitrust, fraud, conspiracy, breach of fiduciary duty and other complex issues for clients involved in the automotive, construction, energy, healthcare, insurance and other business sectors.
Business Transactions/Due Diligence
Mass Torts/Insurance Defense
The EDD Group has assisted trial teams with the review, analysis and use of material evidence retrieved from document collections equivalent in range to hundreds of millions of pages (see, Statement by Kravitch, J. (D. Conn.) for the U.S. Judicial Conf., (7/31/08) (“discovery requests in cases filed in federal court typically involve gigabytes of electronically stored information or about 50,000 pages per gigabyte.”) Specific activities have involved analysis of medical records, medical device development reports and related documents, social media investigations, and working with outside vendors to customize databases or other litigation support tools to meet the evidentiary needs of the particular case. We have performed these services in cases ranging from individual plaintiff slip-and-fall matters to class actions, for clients engaged in housing, medical device and other business sectors.
Government proceedings often involve subpoenas or investigative demands for electronically stored information akin to document requests in private litigation. In many instances, government demands include default specifications for production of information that can greatly increase the cost and other burdens of compliance unless handled carefully, and in some cases modified information through negotiation with government attorneys. The EDD Group has assisted defense teams in the search, review, analysis and production of information potentially responsive to the government’s demands. In doing so, we have confirmed that no material information has been improperly omitted from the collection, review and production of documents to the government. Where the scope and complexity of the matter have warranted, we have provided further support in witness preparation, assistance in briefing evidentiary and related legal issues and preparation of detailed objection logs to meet the requirements of particular jurisdictions for logs themselves to provide a prima facie basis for privilege, work product or other immunity from disclosure. We have performed these services in cases ranging from individual prosecutions to company and industry investigations, for clients engaged in automotive, financial services, healthcare and other business sectors.
- Implementing a Records Retention Program, an annual presentation (Lorman Education Services 2014-2016)
- Cloud Contracts and Considerations, panel discussion with C. Stewart, R. Bobenmoyer & E. Krumhansl; for the Louisville IT Symposium (EFM Events 2016)
- Cybersecurity Enforcement: Leading Roles of the FTC & State Attorneys General (No. Ky. Univ. CyberSecurity Symposium 2015)
- Data Breach Incident Response: Containment & Remediation (Louisville (Ky.) Soc. Info. Mgt. 2015)
- Government Rx: FTC Enforcement Activities “Meet the new Sheriff”; prepared for DATA PRIVACY RX (Frost Brown Todd 2015)
- Government Targets: FTC Enforcement Activities (“Meet the New Sheriff”); prepared for DATA PRIVACY AND SECURITY IN THE CROSSHAIRS: ARE YOU COVERED? (Frost Brown Todd 2014)
- ESI Retention & Form of Production (Rossdale CLE 2014)
In the News
- Forecast for E-Discovery: Mostly Cloudy?
- Indiana and Ohio Amend Civil Rules for Electronic Discovery; Tennessee Begins Process
- Ask the Legal Professional: As a business that extends credit to its customers, do I need to be concerned about the new federal “Red Flag” Identity Theft Rules?
- FTC “Dumpster Diving” Nets $50,000 Fine for Alleged Failure to Shred or Burn Consumer Data
- Court Sanctions Corporation $8.5 Million and Orders Six Outside Counsel to Report to State Bar Association for Failure to Identify and Produce Electronically Stored Information
- Ethical Issues in the Electronic Age
- PODCAST: Avoiding the Million Dollar Mistake
- Business Law Advisory
- Managing Your Record Retention Policy Safely
- Ask the Legal Professional: Corporate Records: Your biggest asset or trap for the unwary?
- Ask the Legal Professional: Does my company need a records or document management program?
- Electronic Document Discovery Issues in a Post Zubulake World
- Ten Tips for an Effective Electronic Discovery Project
Members of the Group have participated in public, client and intra-firm presentations on the subjects of e-discovery and records compliance. Public presentations since 2012 include:
- Implementing a Records Retention Program, an annual presentation (Lorman Education Services 2014-2016)
- Electronic Discovery, Meet Prof. Heisenberg ... Selected Thoughts on Practice & Pitfalls in e-Discovery (No. Ky. Univ./Salmon P. Chase College of Law 2014)
- U.S. Perspective on Privacy By Design, prepared for Operationalizing Privacy by Design, (Frost Brown Todd & Office of the Priv. Cmsnr. Of Ontario, CAN 2013)
- Advising Corporate Directors & Officers: Development of Your Company’s Records Retention P[rogram] (Ohio State Bar Assoc. 2013)
- Electronic Discovery, Meet Inspector Clouseau - Selected Thoughts on Practice & Pitfalls in e-Discovery (No. Ky. Univ./Salmon P. Chase College of Law 2013)