Among other things, we help clients prepare for litigation by developing protocols to understand, manage, preserve and quickly isolate information — both in the United States and internationally.
If left unmanaged, eDiscovery can quickly consume a significant slice of the litigation budget. In the worst case, such costs can dictate litigation strategy. Orrick focuses on developing and implementing eDiscovery proportional to the value of the case. Our eDiscovery lawyers advocate at meet-and-confers and negotiate discovery plans to reduce cost and scope. We have a record of successfully litigating eDiscovery challenges, including arguing preservation, cost shifting, proportionality and spoliation claims. We also advise on the retention and efficient management of eDiscovery experts.
Orrick regularly advises clients on the establishment of records and information management programs. From offering practical, strategic advice on policy development, providing legal guidance in all aspects of information management, and assisting with implementation and execution of the program, we effectively partner with our clients to take the program from concept to actuality.
Orrick’s eDiscovery and Information Governance practice group is comprised of partners and associates who routinely litigate matters involving complex eDiscovery issues and regularly advise clients on information governance. Our practice group shares best practices and advises the firm and our clients on emerging trends in eDiscovery and information governance.
Litigation Readiness, eDiscovery Technology Deployment, Privacy and Data Breach Counseling
Orrick worked with a multinational company to develop and implement an internal eDiscovery archive, preservation, collection and processing solution. Decisions by in-house and outside counsel regarding preservation, collection, processing, review, production and ultimate disposition were mapped to technologies to create a well-documented audit trail. We worked with this client to design and draft its global website and employee data privacy policies, including policies pursuant to COPPA and the European Union’s privacy directives. The policies have been implemented and now govern the company’s collection, protection and use/disclosure of personally identifiable information and other data collected from website users, customers and employees. We also assisted this client with developing its data-breach notification policy and protocols.
National Discovery Counseling
Orrick serves as national discovery counsel for several technology companies standardizing process and creating toolkits of processes, ESI protocol, production specifications, protective orders and clawback provisions. Orrick supports preservation collection and review efforts, assists with motion practices and meet-and-confers.
Collaboration with Client Information Technology Departments
Orrick has assisted a client in automating its electronic document collection and production processes. Orrick lawyers partnered with the client’s IT personnel, including email system developers, in identifying software utility scripts for an automated collection tool, and designing a program for testing and validating the tool. Orrick lawyers managed the overall testing and validation project from inception.
Motion to Compel
In an ongoing securities action, Orrick assisted the case team in litigating the sufficiency of collection and search protocols preparing a motion to compel and motion for sanctions. Orrick also helped identify and retain an eDiscovery testifying expert. The motion resulted in a Federal Court granting our client’s motion.
Motions to Compel and for Protective Order
Prior to retaining Orrick, at the direction of their trial counsel, this client began restoring backup tapes. During the restoration process, our client realized that the costs associated with restoration, processing and review of the backup tape data could exceed $1.5 million. The client retained Orrick as discovery counsel. Working cooperatively with our client’s trial counsel, Orrick then prepared for and argued the motion to compel and motion for a protective order at multiple hearings. Orrick obtained an order (1) denying any further restoration of tapes; (2) compelling full cost-shifting for all internal restoration costs and third-party vendor hosting and processing costs; and (3) compelling a 50% shift in costs for the attorney review of the restored data, an extremely rare provision. The client paid less than $10,000 for the review and restoration of backup tapes originally estimated at $1,500,000. Orrick also advises the client on information security issues and ongoing preservation practices; creating template litigation hold notices, litigation hold FAQs list, and an e-mail retention policy.
Motion for Protective Order
In a commercial matter where another firm is counsel on the merits, a large financial institution engaged our eDiscovery team to assist with motions practice, meet and confers, IT interviews, retention of eDiscovery testifying experts and preparation for eDiscovery related depositions. Our team worked closely with the merits counsel to litigate eDiscovery issues.
Department of Justice Subpoena
Orrick assisted case team in crafting eDiscovery strategy, including preservation, collection and production plan. We also contributed to DOJ negotiations.
Class Actions
We advised clients on the scope of preservation and collection obligations in numerous putative class actions.
ITC Litigation
Orrick developed cost-saving measures in cases involving highly confidential and trade secret information, frequently maintained as structured data. These cost-saving strategies include use of data-culling technologies, alternative approaches to linear (page-by-page) document review and effective use of clawback agreements.
Securities Action
We assisted the case team in preparing a successful motion to compel and motion for sanctions and in identifying and retaining an eDiscovery expert to offer evidence in support of the same.
eDiscovery Testimony
We assisted the case team and client in identifying, preparing and presenting the client's preservation, collection and IT infrastructure 30(b)(6) witness.
Motion for Sanctions
We assisted in preparing and arguing a motion for sanctions for the opposing party's failure to preserve critical evidence.
Meet-and-Confers
Orrick advocated at meet-and-confers and prepared scheduling orders and discovery plans. The participation of our eDiscovery counsel has resulted in reduced scope of preservation and collection, agreements on search terms, tiered discovery, preferred formats of production and other cost savings.
Management of Rule 45 Subpoenas
Many of our clients maintain information routinely requested in litigation where they are not a party. We often manage for our clients their objections and responses to these requests, ensuring efficiency and consistency. We also effectively negotiate with requesting parties to either withdraw their subpoena or reduce the scope of the request.
Emerging Companies Information Governance
We counsel emerging companies on information governance at each stage of a company’s growth. We assist these clients in developing policy, selecting tools, evaluating cloud providers and securing information assets.
Secure Disposition of Stale Data
When a client relocated its operations, we advised on the disposition of stale information and transfer of company data overseas. We also assist clients in the organization and if appropriate, disposition of stale legacy and backup data.
Evaluation of In-Sourcing and Out-Sourcing
We assist clients with the identification of cost savings available through in-sourcing and out-sourcing, including potential return on investment for in-sourced services and technologies. We consult on decisions whether to on-shore or off-shore and the ethical and legal requirements associated with off-shore services.
Collaboration with Client Information Technology Departments
Orrick has assisted a client in automating its electronic document collection and production processes. Orrick lawyers partnered with the client’s IT personnel, including email system developers, in identifying software utility scripts for an automated collection tool, and designing a program for testing and validating the tool. Orrick lawyers managed the overall testing and validation project from inception.
Initial Public Offering
Orrick assisted an emerging company in creation of information governance policy and procedure in anticipation of an initial public offering.
Acquisition and Due Diligence
Orrick assisted a client in creating an information governance checklist for use in due diligence and then integration of acquired entity.
Data Privacy
Orrick assisted a client with international data privacy issues and the development of privacy policies.
Data Privacy
Orrick advised a social networking site on data protection compliance and information disclosure under EU Data Protection laws.
Enterprise Records Management
A large West Coast bank retained Orrick to create detailed records retention schedules for each of its business divisions. Orrick researched federal and state records retention statutes to link specific record types to mandated retention periods.
Enterprise Records Management
Orrick worked with a national retail chain to develop and institute a detailed records management program and assist in litigation readiness. Orrick was able to identify significant areas of cost savings including the disposition of thousands of boxes of hard-copy documents and backup tapes.
Records Management Counseling
Orrick assisted a financial with post-merger reorganization efforts in areas of preservation, records management, data disposition, and e-mail management.
Disposition of Matters
We assist clients and case teams in ensuring that information is appropriately returned or destroyed once matters are resolved and preservation efforts are appropriately suspended and records management reinitiated.