Client Services / Trial / Electronic Data Management, Privacy & Discovery

Electronic Data Management, Privacy & Discovery

The vast majority of business information is stored and transmitted electronically and never printed to paper.  The large volume of electronically stored information (ESI) generated on a daily basis is a valuable business asset that must be protected.  However, it also creates serious risks that must be addressed by large and small companies alike.  McDermott Will & Emery’s lawyers are at the forefront of the ESI sector,Active EDRM Participant with the technological and legal experience to guide clients through the complicated field of ESI.  We stand ready to partner with our clients and assist them in creating practical, creative and cost-effective solutions to store and manage ESI as a valuable business asset before, during and after litigation.


Electronic Discovery of ESI

We assist our clients in developing reasonable, strategically appropriate and legally defensible ESI plans for both the offensive discovery process (including requesting ESI and ensuring opponents are meeting their ESI obligations) and the defensive discovery process (including the preservation, collection, review and production of ESI).  We tailor each plan to fit the complexities and amounts of ESI in each particular case, as well as the resources available to each individual client.  We have developed ESI plans in all types of cases, from the most complex, multi-venue, high-profile litigation to much smaller litigation where the client is faced with relatively low exposure.

Once an ESI plan is tailored for the particular case and client, we oversee the rapid deployment and execution of that plan and help the client through the progression of litigation, including sending out litigation hold notices, identifying and interviewing key custodians, participating in meetings and hearings where ESI is discussed and filing motions to enforce the ESI rules.  We take our role as counselor very seriously and are mindful of the importance of effectively managing costs and vendor relationships.  McDermott is one of the pioneers in employing lawyers with deep experience in the review and production of ESI.  McDermott is a long-standing member of The Sedona Conference’s Working Group 1, dedicated to the development of principles and best practice recommendations for electronic data retention and production, and is the only firm to have lawyers working on all six projects of the Electronic Discovery Reference Model (EDRM) group charged with developing guidelines and standards for both consumers (our clients) and providers of electronic discovery products and services.

Litigation Readiness and Electronic Records Management Counseling

We recognize that information, including ESI, is a vital asset of any organization.  Effective storage and management of ESI can create a competitive business advantage and at the same time minimize risk and reduce potential ESI discovery costs. 

Our clients have learned that the costs and risks associated with ESI are best addressed before a dispute ever arises.  We routinely advise clients that spending a few hours a month preparing for ESI-related litigation goes a long way toward saving substantial amounts of money and other resources. 

To that end, our litigation preparedness team will assist clients in developing cost-effective and common-sense ways to store and manage electronic records and data before a client is ever sued.  Proactive planning for litigation helps minimize risk and lower cost.  Because electronic information is easy to create and equally easy to inadvertently discard, rapid response to preservation helps mitigate litigation risks.  An in-place team armed with a well-designed defense plan makes organized, rapid responses possible and effective.  Because electronic information is voluminous and, therefore, potentially costly to review, strategic planning can have a large impact on effectively managing litigation resources.  We partner with our clients to develop litigation response teams, guide legal hold implementation planning and develop appropriate tracking processes.

We also advise our clients in developing and implementing common-sense records retention policies and compliance programs that meet the current legal requirements and each company’s business needs.  We routinely offer low-cost training programs on topics involving e-mail, “document” (including ESI) retention and compliance with litigation hold notices, so that employees will be educated on the importance of data storage and management, and prepared when they become involved in or associated with litigation.  Our electronic records management professionals are familiar with cross-border and multi-jurisdictional data privacy issues that global organizations often face, and willingly partner with information technology, legal and records departments to create risk management solutions that allow companies to reap the benefit of their corporate resources while effectively managing their short-term and long-term ESI storage risks.

Electronic Data Privacy and Policies Counseling

The rapid and exponential increase in ESI has the unfortunate effect of heightening the possibility that sensitive and proprietary data may be compromised, in violation of a particular law or regulation, or at the expense of a client or its customers.  Businesses that collect and use consumer data, including health care providers, financial services companies and organizations that service those industries, often operate in an environment where the storage and retention of data, including ESI, is highly regulated and varies by jurisdiction, and where missteps can be costly.  In addition, security breaches can result in a public relations crisis within an organization.  We help carefully manage our clients’ employee and customer data and other private information.  We assess risk by considering the volume and sensitivity of the ESI that our clients possess and the current safeguards already implemented.  We help develop appropriate policies and procedures to protect data based on this analysis.  For instance, we routinely advise on appropriate e-mail or laptop security policies and help develop security breach response policies and mitigation plans.  Our regulatory lawyers are skilled in applying to our clients’ situations the requirements of international, federal and state laws, such as the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and similar state laws that protect the privacy and security of protected health information, the Gramm-Leach Bliley Act that protects the privacy and security of nonpublic personal information held by financial institutions, and the EU Directive on the protection of personal data.

We offer counseling in the event of security or privacy breaches, and we assist in meeting any reporting obligations to consumers or to regulatory officials.  We can also assist you in conducting due diligence of downstream vendors and in protecting your ESI contractually.  Finally, our regulatory lawyers are poised to assist you in leveraging the value of your ESI by exploring other uses of the ESI you already possess and the regulatory, contractual and privacy implications of these secondary data uses.

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Trial Client Services

McDermott Will & Emery

McDermott Will and Emery