Discovery and E-Discovery

Discovery has long been one of the most important and expensive components of litigation. Although historically paper and hard-copy file driven, today the vast bulk of discovery is electronic based — email, electronic documents, spreadsheets, databases, social media and data in the cloud. With the significant increase in the volume of electronic data held by companies over the last 20 years, discovery, particularly e-discovery, has become even more significant to the outcome and cost of litigation. There has been a proliferation of systems, software and vendors to assist with e-discovery complexities. Hunton Andrews Kurth LLP has extensive experience assisting clients with discovery, including the use of new tools and contacts with key players in the e-discovery “space.”

Managing the discovery process for the most effective and efficient outcome requires good lawyering — the right strategy, well-chosen tactics and disciplined execution. Effective discovery counsel incorporate a thorough knowledge of the client’s information environment with the evidentiary needs of the case (both offensive and defensive) and use that knowledge to issue and respond to discovery, successfully negotiate discovery with opposing counsel and prosecute and defend discovery motions before magistrates and judges. While tight management of the discovery process is important, what is even more important, and can lead to even greater cost savings, is effective lawyering on the front end to limit the scope and burdensomeness of discovery. The least expensive document to review is the one that is defined during the meet and confer process as being outside the realm of discoverable information.

Our discovery practice leaders have been closely involved for over 20 years in the discovery and management of electronically stored information. Our dedicated team has a deep understanding of evolving legal requirements and significant experience assisting clients in meeting the challenge of building a defensible discovery process, while at the same time reducing cost. Our team has built its practice by being selected to provide discovery and data management services through nationwide RFPs, assisting other firm practice groups in the coordination of discovery in their matters and serving as repeat discovery counsel in cases being led by other firms. We advise our clients on emerging issues and trends impacting electronic discovery, including social networking, cloud computing and machine-based document coding.

In our engagements as national discovery counsel and discovery-coordinating counsel, we have achieved successful partnerships with clients, reducing legal risks and costs by taking the following general approach:

  • Gaining a thorough working knowledge, quickly, of the client’s business; its corporate structure and culture; litigation portfolio; in-house legal, IT and business personnel; existing data systems and processes; vendor preferences; and primary merits counsel.
  • Assessing and benchmarking the client’s existing policies, processes, documentation, technology solutions and resources against market practices and evolving case law.
  • Developing technical system profiles of all primary IT systems most frequently implicated in the client’s litigation to document data flows, sources and duration, as well as general costs and burdens to preserve and produce, in order to make consistent representations.
  • Determining the most effective and efficient approaches for preservation, collection and review protocols and serving as the hub for discovery activity and information.
  • Encouraging the performance of targeted, well-documented collections to reduce stockpiles and facilitate reuse of data.
  • Assisting clients on structuring document review processes to provide a consistent, defensible process at reduced and predictable cost.
  • Using technology, including new predictive coding models, to cull data more effectively so that data in the review stage is less voluminous, more relevant and more defensible, and search terms can easily be sampled and refined.
  • Documenting each step of the discovery effort to provide a consistent, defensible process that will satisfy legal requirements and be readily explainable to external parties, including merits counsel, regulators, opposing counsel and judges.
  • Assessing client’s data management policies and strategies and providing recommendations to reduce legal risk and operational cost through tailoring normal data operations and discovery responses to fit the client’s needs.

Experience

  • Our combination of case-specific and enterprise e-discovery engagements provides our clients with comprehensive and seasoned experience. Below are examples of the e-discovery group's experience:

    • Discovery counsel in a large-scale internal investigation of a financial institution, as well as in related government subpoenas and civil litigation.
    • Discovery counsel for leading cigarette company in litigation in state and federal courts across the country.
    • Discovery counsel for large chemical company in $1 billion suit against another large chemical company, arising out of purchase/sale of multiple manufacturing facilities.
    • National e-discovery counsel for a FORTUNE® 150 company, advising it on the e-discovery issues associated with every significant case, working with merits counsel on the litigation hold process, developing a discovery response plan and overseeing the collection and review of ESI data.
    • National labor and employment practice e-discovery counsel for a FORTUNE 50 retailer.
    • Coordinated the collection and managed large-scale review and deposition preparation related to significant DOJ second request in the transportation industry.
    • Advised large global financial services company on collection, review and production of over a terabyte of data from multiple countries, including analysis and compliance with EU data protection law and blocking statutes.
    • Advised clients in civil RICO action against international labor union and related defendants on defensive discovery strategy for national preservation, collection and processing issues.
    • Represent major international beverage manufacturer coordinating discovery for disputes in the United States and the United Kingdom, including the preservation and collection of electronically stored information.
    • Oversaw and coordinated electronic document preservation and collection from approximately 8,000 employees at more than 500 locations for a major national bank in response to a federal investigation and litigations associated with the credit crisis and subprime lending.
    • Retained by a FORTUNE 250 retail company to assist in an auditor-initiated 10A investigation over the possible spoliation of electronic evidence by a senior officer; our work resulted in a finding of no 10A violation.
    • Retained by a FORTUNE 50 company to establish enterprise processes and procedures for litigation holds and an ESI collection methodology.
    • Retained by a large financial services company to advise on legal issues associated with appropriately managing almost 14 petabytes of highly redundant email data while maintaining compliance with various court orders and preservation obligations.
    • Retained by a FORTUNE 200 heavy industry company to oversee an audit of the legacy and archival media in various warehouses around the world.
    • Worked with a leading defense contractor in evaluating search technologies as a cost-saving measure in litigation.
    • Retained by several companies within the context of sanctions motions and government investigations, and to assist in particularly complex multijurisdictional e-discovery issues.
    • Regularly advise large and mid-sized companies on complex and emerging e-discovery and information management issues, including cloud computing, social networking policies and discovery, international discovery and computer-assisted document coding technology.

Insights