Background - Practices (Details)

E-Discovery & Information Management

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Crowell & Moring is at the forefront of the emergent field of electronic discovery. We have experience with the full range of issues businesses face in managing electronically stored information (ESI) in litigations and investigations. We counsel clients on best practices for maintaining, preserving, collecting, and producing ESI in a cost effective manner, and help them develop tailored workflows to most effectively meet their data needs. Our professionals provide thought leadership, participating in leading industry groups, speaking engagements and conferences, and publish on a wide variety of topics related to electronic discovery.

Our Approach to E-Discovery

Crowell & Moring does not have a “one-size-fits-all” approach to designing a discovery process. We get to know our clients, their business and IT infrastructure, and evaluate the unique characteristics of each matter to help determine the most efficient, effective and defensible end- to-end process. Among the factors we consider for matters are: (a) budget, (b) type of matter, (c) likely volume of ESI and timeframe for collection/production, (d) client network infrastructure, software and data sources, (e) data retention policies, and (f) litigation tactics, such as pressure points of the opponent and offensive discovery desired. We mix in our knowledge of technology and vendors to come up with the most efficient and cost-effective e-discovery solution. Our work spans industries, providing us with deep bench strength in working through issues particular to the businesses of our clients.

Our team has the experience, infrastructure and project management skills to deal with an ESI project of any size, in practically any context. Where complex and voluminous data work is needed, we work with clients to assess and engage an e-discovery vendor to secure, process, host and potentially to help review the data. Additionally, our staff is trained to understand the underlying technology to ensure that the vendor can perform to what they advertise. We frequently reevaluate tools to ensure that we are taking advantage of the “best in class” technologies. We likewise regularly reevaluate vendors to ensure that we have the best pricing and that vendors have continued capacity to meet the demands of our projects.

Our Team

The attorneys and professionals in the E-Discovery and Information Management Practice (EDIM) have broad experience in addressing the full range of data discovery issues and developing and implementing effective and efficient discovery response efforts. We routinely assist our clients in the litigation of e-discovery. We conduct meet and confer conferences in litigation, negotiate with regulatory agencies and opposing counsel regarding the scope of discovery, argue discovery motions and take and defend records and information technology depositions. Our case teams also work closely with the EDIM group’s cutting-edge Practice Technology professionals, dedicated IT/technical specialists and project managers, to design and implement document collection and review processes that take full advantage of the most appropriate, effective and cost-efficient technologies. EDIM attorneys and professionals have broad experience in all document review and case analysis software, as well as computer forensics and emerging and advanced e-discovery technologies, which can drive significant gains in quality and cost reduction by targeting and minimizing the amount of attorney review time.

Our Use of Advanced Process and Technology

Crowell & Moring works on the leading edge of legal process and technology. We look to make data-informed decisions, and emphasize people, process and technology as a means to promoting quality, efficiency and accuracy. We develop work flows that take advantage of technology to quickly identify key documents as well as to cull out vast amounts of non-responsive documents. We regularly deploy artificial intelligence and other advanced analytic tools to rapidly assess data, find hidden patterns and escalate important information to drive case understanding and management. In this way, we can interrogate great volumes of data in a fraction of the time, and at a fraction of the costs, seen in traditional e-discovery.

By way of example, in one government investigation, we collected ESI from approximately 300 custodians. We designed a multi-phased process to understand and cull the data in an analytic platform, and then refined our target set to achieve greater than 95% accuracy through the application of predictive modeling and other analytic tools. The first two phases – eliminating bulk categories of obviously non-responsive data, and then deploying search terms, concept clustering and other analytic techniques – reduced the post-deduplication data set by 50%. Predictive modeling identified approximately 20% of the remainder as worth review. Thus, of the original 3+ terabytes of data, we used technology and process to exclude 90% as non- responsive, without engaging a single contract attorney. We pay scrupulous attention up front and throughout to planning, documentation and validation to ensure a defensible product. We saved the client millions of dollars, and achieved far higher quality than would have been achieved by contract attorney review.

Discovery Readiness Planning for Litigation and Regulatory Compliance

Cost-effective management of discovery begins with developing a plan to prepare for litigation and regulatory compliance. With our E-Data Checkup, gain an understanding of your company’s unique information technology infrastructure and assets. Our experience helps clients understand and rationalize their disparate practices and systems, and to align their data management strategies with their compliance and litigation risk- reduction needs. We do this in a way that is consistent with evolving legal requirements and that uses the most efficient and cost-effective technologies available. In addition, we help our clients analyze corporate litigation vulnerabilities, map corporate information management infrastructure — including inaccessible, legacy, and back-up information – and identify custodians and sources of data most likely to be relevant to high-risk litigation.

Based on the results of this Checkup, we offer tailored solutions to reduce the potential for loss of electronic information (and the accompanying risks that could result, including sanctions) and advise on updated document management policies, legal hold protocols, and the adequacy of security, privacy, and appropriate usage policies. We also work with clients to develop customized protocols for document preservation, collection, review, and production, which can dramatically reduce the overall burdens of complying with e-discovery requests.

Discovery Counsel

Rapid developments in law and technology, in particular in their impact on larger enterprises with loosely integrated systems and processes, support the handling of discovery in a consistent, defensible and efficient manner across a portfolio of legal matters. Accordingly, more and more clients see the value of treating discovery counsel as a carve-out area of legal competence that provides a streamlined and consistent discovery approach across the enterprise.

By consolidating discovery and coordinating preservation strategies, litigation positions, and tasks across different matters, we assist our clients to leverage overlapping discovery requirements, to reduce costs and burden to the organization, and to reduce the risks associated with inconsistent positions and practices. Additionally, our familiarity with our clients' systems, technologies, legal hold processes, discovery practices, and IT personnel ensure effective and efficient discovery response efforts and swift determination of issues related to preservation, privilege, and form of production. We routinely participate in meetings and negotiations with regulatory agencies and opposing counsel regarding the scope of discovery, and we have substantial experience with discovery motions practice and with the taking and defending of depositions of information technology experts.

Document Review Services

Manual review of documents is the most expensive part of any e-discovery project. Crowell & Moring has made significant investments to help our clients reduce these costs in a number of ways. First and foremost, the single most effective way to reduce cost and burden is in negotiating the scope of the request. Our lawyers have extensive experience negotiating e- discovery issues in federal and state courts, as well as with many federal agencies in a wide variety of contexts. Second, we use advanced technologies to reduce the volume subject to manual review. Third, the firm provides in-sourced document review at highly competitive rates. Working with our clients, we employ innovative staffing models including our Discovery Attorneys that allow for flexibility and creativity in order to sharply reduce costs. We have reviewed and produced electronic documents on a wide variety of matters, ranging from several thousand to more than one hundred million pages, and our facility is staffed with professionals trained on the most cutting-edge review technologies and best practices. Together, these advantages give us the capability to offer alternative pricing and shared-risk approaches to the total cost of document review services.