Cozen O’Connor: Electronic Discovery

Electronic Discovery

The proliferation of electronically stored information (ESI) has made it infinitely more difficult for businesses to manage, index, access, and preserve their own data. Employees routinely work on personal devices and essential business data is no longer centrally controlled. While the portability of data enhances operating flexibility and communication, it can also lead to enormous problems when a business becomes involved in litigation. Case outcomes increasingly turn on electronic evidence, and courts have recently issued large penalties against companies that were not able to properly respond to requests for electronically stored data. Given the importance of e-discovery in today’s digital marketplace, companies must have experienced and sophisticated e-discovery counsel.

The firm represents a wide variety of public and private companies on the full range of e-discovery issues. Cozen O’Connor attorneys provide comprehensive litigation readiness counseling, which means that we help clients get their electronic houses in order before being confronted with an actual claim. We map the location of critical data; establish policies for collection, retention, destruction, and extraction of data; perform e-discovery fire drills; and train employees in best practices. We also advise clients on the preservation, collection, review, protection, and production of electronic data in the context of active litigation or government investigations. We not only help clients respond efficiently to e-discovery requests, we also craft e-discovery strategies that affirmatively place clients in the best possible position.

Cozen O’Connor is one of the few large firms in the country that combines cutting-edge technological savvy with an immense amount of hands-on trial experience. Being able to accurately anticipate how evidence will be used and perceived at trial is essential when making critical early decisions about e-discovery strategy. Whether interviewing custodians of relevant data, drafting litigation holds, presenting the court with a preservation and protection plan, or advocating for a particular set of e-discovery parameters, Cozen O’Connor’s lawyers bring their well-known trials skills to bear.

Our attorneys stand at the lead of the emerging e-discovery field. They have served on the electronic discovery advisory panel for ARMA (the international trade association representing records and information managers), served on the board of the Defense Research Institute’s E-Discovery Committee, and been active participants in The Sedona Conference, a research and educational institute dedicated to the advanced study of law and policy. One of our attorneys is a Certified Information Privacy Professional (CIPP/US) through the International Association of Privacy Professionals. Cozen O’Connor lawyers frequently speak at national conferences on e-discovery and digital forensics, and have published numerous articles concerning our E-discovery practice and advisory support (ePAS) services.

 

SERVICE AREAS

  • Advise on all aspects of e-discovery in the context of active litigation and government investigations, including methods for preservation, collection, review, protection, and production of electronic data
  • Negotiate with adversaries over the scope and format of electronic productions
  • Draft and manage “litigation holds” to avoid allegations of spoliation and potential sanctions
  • Investigate alleged improper access of electronically stored information (ESI)
  • Supervise review of electronic records by e-discovery vendors and contract attorneys
  • Work closely with computer forensics experts in electronic information investigations
  • Develop best practices governing the retention, storage, collection, destruction, and extraction of ESI
  • Share proprietary preferred-vendor list of e-discovery businesses and providers
  • Advise on software to improve tracking, retention, organization, and archiving of data
  • Lead interdisciplinary teams of IT and records management specialists, vendors, consultants, and in-house counsel to ensure the use of proper document-retention policies
  • Train clients on e-mail use, document retention, and other records retention issues
  • Develop pilot programs to audit internal e-discovery processes and identify problem areas

Publications

‘Possession, Custody or Control’—Got It?

April 11, 2018

Michael de Leeuw, a member in the firm's Commercial Litigation Department, authored, " ‘Possession, Custody or Control’—Got It?" for the New York Law Journal.

How to Effectively Conduct Discovery in a Mobile-First World [The Legal Intelligencer]

February 07, 2017

Joseph Tate, a member of Cozen O'Connor's Institutional Response group, discusses how to conduct discovery in a mobile-first world.

Big Data's Potential Disparate Impact Problem [Law360]

August 21, 2014

David Walton, vice chair of Cozen O'Connor's Labor & Employment department, authored an article for Law360 titled, ''Big Data's Potential Disparate Impact Problem.'' David argues that big data analytics may soon become ''the backbone for all personnel decisions.'' However, he cautions employers to ensure that protected categories are treated fairly, as ''Blind reliance on big data can lead to major disparate impact issues.''

You thought ESI was complicated — Now add big data [InsideCounsel]

April 25, 2014

David Walton, vice chair of Cozen O’Connor’s Labor & Employment department, authored an article for InsideCounsel titled, “You Thought ESI was complicated – Now add big data.” Walton discusses the difficulties lawyers can face when dealing with electronically saved information and how they are increasingly more difficult with the addition of big data

How lawyers and law firms operate in a Big Data world [InsideCounsel]

April 11, 2014

David Walton, vice chair of Cozen O’Connor’s Labor & Employment department, authored an article for InsideCounsel, in which he discusses the ways, “big data has sparked a revolution in how corporate America conducts research, identifies customers, advertises itself, and pursues profits.”

Big Data raises big legal issues [InsideCounsel]

March 28, 2014

As companies realize the benefits of big data on their research & development, marketing, sales, branding, and revenue growth, they will increasingly have to reckon with its risks. Utilizing and monetizing big data raises enormous legal questions and potential liabilities. The most salient of these legal issues, at least in the near term, revolve around privacy, regulatory compliance, and duty to intervene.

Technology: How exactly are businesses using big data? [InsideCounsel]

March 14, 2014

Today, almost every large company collects data about its customers — reams and reams of raw, unstructured data. And they aren’t storing it for posterity. They are using it to do what businesses always try to do: Sell more widgets. More specifically, companies are using big data to identify new customers, advertise more effectively, and develop new products and services.

Technology: All databases are not created equal, and counsel should know the difference [InsideCounsel]

March 07, 2014

In an article titled “Technology: All databases are not created equal and counsel should know the difference,” Dave Walton, vice chair of Cozen O’Connor’s Labor & Employment Department and co-chair of the firm’s E-Discovery Task Force, discusses big data analytics and the history of data management and analysis to aid in understanding and interpreting these analytics.

Technology: Why Big Data is a Big Deal for Lawyers [InsideCounsel]

February 14, 2014

Yahoo CEO Marissa Mayer said that “big data” will have a bigger impact than the Internet. Consider how the Internet completely changed our lives. It’s hard to imagine anything, let alone the vague concept of “big data,” having that type of impact.Yet, if you have read any article the past year on a legal technology issue, you have undoubtedly heard about big data. There’s still a lot of confusion about big data, its power, its potential, and what it means for lawyers. This article is the first in a series that will explore these issues and illustrate why big data really is (and will continue to be) a big deal for the legal profession.

E-Discovery: Amendments Propose Extending 'Meet and Confer' Requirement [New York Law Journal]

March 18, 2013

The era when a lawyer can competently practice without understanding a client's electronic data is rapidly drawing to a close. New York's Office of Court Administration has recommended amendments to the rules governing preliminary conferences in non-Commercial Division cases that should radically reduce the number of cases where one can stand in front of a judge like Saturday Night Live's fabled unfrozen caveman lawyer, proudly ignorant of electronic discovery issues.

Dropbox and the Impact of Personal Cloud Storage on ESI [The Legal Intelligencer]

January 29, 2013

We have all heard and read about the ubiquitous internet "cloud." But what exactly is the cloud? And what specifically does that mean for e-discovery?

Litigation: Use the Preliminary Conference to Save E-Discovery Costs [New York Law Journal]

April 18, 2011

All too often in today’s litigation environment, electronic discovery issues turn into expensive deathtraps that threaten to overwhelm the merits of the actual dispute between the parties. But prepared litigants can and should take measures to avoid the “gotcha” pitfalls attendant to e-discovery long before the terabytes have been put through the thresher.

Litigation: E-Discovery Oft-Overlooked Price Driver [New York Law Journal]

November 15, 2010

The costs associated with the discovery of electronically stored information (ESI) continue to increase at rates unknown outside of the healthcare industry. While much of the discussion regarding costs centers on those associated with accessing, reviewing and producing ESI, an oft-overlooked but (in many cases) significant driver of the high price of discovery are the costs associated with preserving ESI.

Maryland Federal Court Imposes Sanctions for Egregious eDiscovery Violations [Insurance Coverage Alert!]

September 30, 2010

Maryland Federal Court Imposes Sanctions for Egregious eDiscovery Violations - Insurance Coverage Alert! - In Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 U.S. Dist. Lexis 93644 (2010 D. Maryland Sept. 9, 2010), the United States District Court for the District of Maryland imposed sanctions for some of the most egregious eDiscovery misconduct ever reported in any decision. The court entered a default judgment, awarded attorneys’ fees and costs allocable to spoliation of evidence. Additionally, the court directed one of the defendants to be “imprisoned for a period not to exceed two years”

The Phantom Menace [New York Law Journal]

March 22, 2010

At this point in the discovery revolution, there is no question that savvy litigants have become sensitive to the need to preserve documents and, particularly, electronically stored information (ESI). While the cost of even marginal preservation steps can be quite high, the failure to act promptly can lead to the unintentional loss of documents (through the recycling of disaster recovery backups or the operation of automatic deletion routines in e-mail mailboxes) and unpleasant litigation consequences.

Revisiting Zubulake: Discovery Sanctions in the e-Discovery Context [Commercial Litigation Alert!]

February 02, 2010

Revisiting Zubulake: Discovery Sanctions in the e-Discovery Context - Commercial Litigation Alert! - On January 11, 2010, Judge Scheindlin, who authored the groundbreaking Zubulake opinions, issued a new opinion regarding sanctions in eDiscovery.1 Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Scs., 2010 U.S. Dist. Lexis 1839 (S.D.N.Y. Jan. 11, 2010), involved an action against defendants who were connected to a hedge fund that lost money. These defendants sought sanctions against the plaintiffs for their alleged failure to
properly preserve and produce documents,

E-Discovery: Revisiting Zubulake: Discovery Sanctions in the e-Discovery Context [Insurance Coverage Alert!]

January 27, 2010

E-Discovery: Revisiting Zubulake: Discovery Sanctions in the e-Discovery Context - Insurance Coverage Alert! - On January 11, 2010, Judge Scheindlin, who authored the groundbreaking Zubulake opinions, issued a new opinion regarding sanctions in eDiscovery.1 Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Scs., 2010 U.S. Dist. Lexis 1839 (S.D.N.Y. Jan. 11, 2010), involved an action against defendants who were connected to a hedge fund that lost money. These defendants sought sanctions against the plaintiffs for their alleged failure to properly preserve and produce documents,

Washington Supreme Court Affirms $8,000,000 Discovery Sanction [Insurance Coverage Alert!]

January 12, 2010

Washington Supreme Court Affirms $8,000,000 Discovery Sanction - Insurance Coverage Alert! - In Magaña v. Hyundai Motor America, et al., 220 P.3d 191, (Wash. 2009), the Washington Supreme Court affirmed a default judgment against a car manufacturer for $8,000,000 for discovery violations. The Supreme Court’s holding was
supported by evidence of willful efforts to frustrate and undermine “truthful pretrial discovery efforts.”

In House Counsel Sanctioned for Failure to Issue Litigation Hold [Insurance Coverage Alert!]

December 15, 2009

In House Counsel Sanctioned for Failure to Issue Litigation Hold - Insurance Coverage Alert! - In Swofford v. Eslinger, ___ F. Supp. 2d ___, 2009 WL 3818593 (M.D. Fla. Sept. 28, 2009), the United States District Court for the Middle District of Florida imposed severe sanctions for failure to preserve electronically stored information.

Fessing Up to Facebook: Recent Trends in the Use of Social Network Websites for Civil Litigation [CANADIAN JOURNAL OF LAW AND TECHNOLOGY]

December 01, 2009

Fessing Up to Facebook: Recent Trends in the Use of Social Network Websites for Civil Litigation - CANADIAN JOURNAL OF LAW AND TECHNOLOGY - In December 2008, after several failed attempts to serve a couple with court documents by email by and text messaging their mobile phones, an Australian lawyer won the right to serve a default judgment by posting the terms of the judgment on the defendants’ Facebook “Wall.” In a ruling that appears to be the first of its
kind anywhere in the world, Master Harper of the Supreme Court of the Australian

Avoiding Danger to Business Secrets in a Bad Economy [Law.com]

January 09, 2009

Avoiding Danger to Business Secrets in a Bad Economy - Law.com - Bad economic times create opportunities for strong companies to poach good employees from a weakened competitor -- a signal for employers to aggressively protect trade secrets.

To Spy or not to Spy [HR Advisor]

January 01, 2009

To Spy or not to Spy - HR Advisor - To spy or not to spy on your own employees? That is the question facing many employers today. And, increasing numbers of companies—facing concerns ranging from data security to trade secrets—are saying “yes” to employee surveillance. Here’s a look at the current surveillance landscape, the case for watching your employees, and how you can protect yourself from claims of improper monitoring. the stats

Navigating the Wild West of E-Discovery in PA State Court [The Legal Intelligencer/PA Law Weekly: e-Discovery Supplement]

August 25, 2008

Navigating the Wild West of E-Discovery in PA State Court - The Legal Intelligencer/PA Law Weekly: e-Discovery Supplement - Much has been written and said about what attorneys must do to comply with their obligations to preserve and produce electronically stored information (ESI) in federal court. Significantly less attention has been given to the same obligations in state court, despite the fact that ESI is as relevant in state court as in federal court.

Risk Management 101 [BEST'S REVIEW]

August 01, 2008

Risk Management 101 - BEST'S REVIEW - The value of customer data is recognized by all businesses. Each piece of data brings power but also risks. You can use it, sell it, update it, ignore it - even and here's the catch - lose it.

If your business possesses personal, identifiable, information such as Social Security numbers of dates of birth, customer account information such as account numbers and expiration dates, or medical records, then you have a legal duty to maintain the privacy of that information.

Beware the Digital Minefield [New York Law Journal]

May 19, 2008

While the collection, review and production of e-mails and other electronic documents have become routine for U.S. companies involved in civil litigation, internal investigations, and various other legal matters, there is an increasing number of cases that involve foreign or multinational clients, and the collection and production of electronic documents from these clients can be anything but routine.

The Electronic Paper Chase: What You Don’t Save Can Hurt You [Constructor]

April 01, 2008

The Electronic Paper Chase: What You Don’t Save Can Hurt You - Constructor - Over the past decade, an increasing amount of business is being conducted electronically, much of it by e-mail. It's estimated that there are more than one billion business e -mails created in the U.S. each day. Less than 20% of these are ever printed, and 95% or more of all new
documents are stored electronically. Some formal structure was needed to govern this volume of data within the litigation context.

Should an Insurer Institute a Litigation Hold to Preserve Electronic Data after Denying a Claim? [Tort Source: A Publication if the Tort Trial & Insurance Practice Section]

January 01, 2008

Should an Insurer Institute a Litigation Hold to Preserve Electronic Data after Denying a Claim? - Tort Source: A Publication if the Tort Trial & Insurance Practice Section -

Formulating a Records Retention Policy [For The Defense]

January 01, 2008

Formulating a Records Retention Policy - For The Defense - The cost of defending a lawsuit often increases due to the existence of old records--that is, records that need not exist if they had been properly destroyed under a formal records retention policy.

Washington State Voters Approve New “Bad Faith” Act [Insurance Coverage Alert]

November 09, 2007

Washington State Voters Approve New “Bad Faith” Act - Insurance Coverage Alert - On November 6, 2007, the voters of Washington State approved a new statutory basis for a wide range of so-called “insurer bad faith” claims. Under the “insurance fair conduct act” (“Act”), “penalties” may be imposed against insurers that are found to have “acted unreasonably” or that are found to have violated any one of at least 37 existing Washington Administrative Code rules adopted by

E-Discovery: OMG! We Forgot to Produce IMs [New York Law Journal]

November 05, 2007

By now, most litigators have come to grips with e-mail and its many problems. We know that the ubiquity and shear volume of e-mail have changed civil discovery forever. We have all become familiar with our clients’ e-mail systems and their policies and procedures for the use and maintenance of e-mail. At the outset of a case we seemingly now spend more time with IT professionals than with in-house counsel, and we all know that it is important how often and when email servers are backed up and where files are stored. What many of us and our clients do not know (or are only learning now) is that millions of employees have been sending millions of messages to each other and to third parties each day—messages that completely circumvent all of the policies, processes and procedures that have diligently been put in place to control the e-mail monster.

With Updated E-Discovery Regulations, Employers Must Face New Battle [Workforce Management]

April 19, 2007

With Updated E-Discovery Regulations, Employers Must Face New Battle - Workforce Management - Recent amendments to the Federal Rules of Civil Procedures relating to electronically stored information raise the bar for what will be expected of e discovery in terms of employer's monitoring and policies. Employers will ultimately feel the brunt of these sweeping changes, with dramatic changes to the way discovery will be conducted in federal court, where most discrimination suits are filed.

Clicking With New E-Discovery Rules [The Metropolitan Corporate Counsel]

March 01, 2007

Clicking With New E-Discovery Rules - The Metropolitan Corporate Counsel -

2007 E-Discovery Seminar - Philadelphia (Rittenhouse Hotel) [E-Discovery Amendments to the Federal Rules of Civil Procedure - Are You Prepared to Comply with the New Rules]

January 25, 2007

2007 E-Discovery Seminar - Philadelphia (Rittenhouse Hotel) - E-Discovery Amendments to the Federal Rules of Civil Procedure - Are You Prepared to Comply with the New Rules - Accompanying seminar program book from the E-Discovery Seminar of 1/25/2007 at the Rittenhouse Hotel in Philadelphia presented to The Insurance Society of Philadelphia CLE Seminar.

2006 E-Discovery Seminar - New York (Marriott Financial Center) [E-Discovery Amendments to the Federal Rules of Civil Procedure - Are You Prepared?]

November 14, 2006

2006 E-Discovery Seminar - New York (Marriott Financial Center) - E-Discovery Amendments to the Federal Rules of Civil Procedure - Are You Prepared? - Accompanying seminar program book from the E-Discovery Seminar of 1/25/2007 at the New York Marriott Financial Center, Manhattan.

Spam After Can-Spam: How Inconsistent Thinking Has Made a Hash out of Unsolicited Commercial E-Mail Policy [Santa Clara Computer & High Technology Law Journal]

January 01, 2004

The authors of the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (hereinafter, "CAN-SPAM" or the "Act"),' the first United States federal law placing restrictions on the use of unsolicited commercial e-mail ("UCE"), or "spam," were asking for trouble. First, the title of the Act rings of Orwellian doublespeak. Second, its content has drawn ire from all sides except, for the most part, the direct marketers who are the ones being regulated - and that is not a good sign.

Events & Seminars

Past Events

Using Big Data In Litigation

October 16, 2014 - Webcast

Georgetown Law Advanced eDiscovery Institute

November 21, 2013 - McLean, VA

2013 Conference on Preservation Excellence

September 18, 2013 - Portland, OR

DELVACCA: Ethics CLE Institute

August 08, 2013 - Philadelphia, PA

PBI's Paralegal Institute

May 09, 2013 - Philadelphia, PA

Kroll Ontrack 2011 E-Discovery Certification Courses

April 07, 2011 - Eden Prairie, MN

16th Annual Employment Law Institute

April 13, 2010 - Philadelphia, PA

International eDiscovery Disputes

June 17, 2009 - Paris, France

Current Developments in E-Discovery

June 16, 2009 - London, UK

Document Management & E-Discovery Forum

September 17, 2008 - New York, NY

DRI Electronic Discovery Seminar

April 17, 2008 - New York, NY

2007 PLUS International Conference

November 07, 2007 - Washington, D.C.

ISOTECH - The Insurance Technology Conference

October 28, 2007 - New Orleans, LA

CMAA Mid-Atlantic Chapter September Meeting

September 18, 2007 - Philadelphia, PA

The ABC and D's of eDiscovery

May 21, 2007 - Paris, France

Cozen O'Connor - E-Discovery Seminar

January 25, 2007 - Philadelphia, PA

E-Discovery Seminar

November 14, 2006 - New York, NY

In The News

David Walton Discusses Communication Strategies and Data Preservation in Legal Tech News

November 01, 2015

David Walton, co-chair of Cozen O’Connor’s Privacy, Data & Cybersecurity Industry Team, discusses his take on communications strategies and data preservation at the firm in Legal Tech News.

David Walton Discusses Managing Preservation in Legaltech News

September 09, 2015

David Walton discusses how to more effectively manage the challenges of preservation, an integral part of the e-discovery process.

David Walton Discusses Big Data on 92.5 XTU Radio’s Philadelphia Focus

October 21, 2014

David Walton, vice chair of Cozen O’Connor’s Labor & Employment Department, discusses big data and cybercrime in an interview on 92.5 XTU Radio’s Philadelphia Focus.