K&L Gates e-discovery Analysis & Technolog y Group

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1 K&L Gates e-discovery Analysis & Technolog y Group Records are everywhere in paper, in electronic form, in large unorganized volumes. How an organization manages its records from the initial creation through each record s lifecycle is complicated by the internal systems used, business needs and the legal and regulatory requirements in play. We assist our clients in drafting, refining, and enforcing records management policies, reducing risk exposure, improving litigation readiness, and pursuing best options to collect, filter and review electronically stored information and documents for litigation, regulatory investigations, and business transactions. With the assistance of advanced technology, tested business processes, developed tools, and a dedicated team of experienced lawyers and para-professionals, we team with our clients to identify and implement sensible practices and cost-saving efficiencies. Records Management Counseling K&L Gates records management practice addresses the entire lifecycle of a record. For both hard copy and electronically stored information, we advise clients regarding strategies to control the distribution of records, manage the storage of records, and ensure the retention and disposal of records in accordance with applicable laws and regulations. The focus of our advice is to mitigate legal risks and reduce costs arising from records management issues. Our legal services, described in more detail in the following pages, include: Records Management Counseling we provide advice and assistance regarding records retention polices, practices and schedules, employee training and other recommendations to maintain legal compliance, lower record management costs, and reduce liability risks. Litigation Readiness Counseling we work with you to develop your organization s plan for responding to litigation or government investigation, focusing on retention, collection, review, and production, including the record hold process. Legal Review and Production our team of specially trained lawyers perform the legal review of documents for production and provide extensive litigation support. We use technology and streamlined review processes to achieve cost-effective and efficient results for our clients. Special Electronic Discovery Counsel we work with your trial counsel of choice to provide e-discovery counsel, from assisting with initial disclosures, to drafting and responding to written discovery, to assisting with depositions and motions practice on discovery issues. Service as Discovery Referees, Advisors or Neutral Reviewers our experienced partners are available to assist judges, arbitrators, mediators and parties deal with e-discovery issues. We can also provide services, including ESI processing, review and hosting for multiple parties in a matter to reduce e-discovery costs. Automated Litigation and Practice Support we use numerous litigation support tools and practices to provide discovery and trial support to our clients. To find out more about our services please contact one of our practice group co-chairs or visit our blog at David Cohen or Martha Dawson We have developed numerous tools for use in our records management counseling. These include: A research database containing statutory and regulatory record retention requirements for common types of corporate and financial records, based on U.S. Federal law and the law of all 50 states and the District of Columbia. A database of several hundred litigation support vendors, and master support services agreements with many vendors that reduce transaction costs and, in many instances, provide preferred pricing for our clients. A detailed survey procedure to identify nearterm and long-term improvements to records management within an organization. Model Records Management Policies and Retention Schedules to use as a platform to create or modify client-specific policies tailored to the client s business structure and information systems. Automated user prompts to mitigate risks of misdirected and inadvertently sent s. Training modules and flyers to educate employees regarding records management, and sensitivity issues. The vast majority of business records created today are created in electronic form. Our counseling always includes consideration of technology-based solutions to records management issues, and we regularly work with clients IT staff to implement automated improvements to records management.

2 Litigation Readiness Counseling K&L Gates has assisted numerous organizations, large and small, in preparing for e-discovery in litigation. Preparedness generally starts with having and following sensible record retention and disaster recovery policies that do not save voluminous outdated records where not legally required, and that limit the ordinary retention and use of backup media to disaster recovery purposes. However, beyond such policies and procedures, we have also developed and assisted clients with unique tools and processes, including: Legal hold procedures. Several varieties of hold notices and certifi cations. Record hold training modules to educate employees who may be subject to a litigation hold. Tracking litigation holds and sending reminder notices, including the use of our Retention & Recycle Database. Setting up Automated Litigation & e-discovery Response ( ALERT ) Teams. Supplying a Litigation Toolkit, including starter preservation notices, interrogatories, document requests, and deposition notices that can be adapted for use in particular cases. Collecting and documenting record location information for mandatory disclosures and pretrial conferences. Helping clients pilot record collection and production steps. Phase I litigation readiness evaluations and recommendations. Legal Review and Production At K&L Gates we offer our clients a different approach to the legal review and production of documents, whether that review is needed for litigation, government investigation, internal investigation, or due diligence. We recognize that every matter is unique and that there are many approaches that can be taken to review documents. We team with our clients to fi nd the best approach for each matter, with cost options and expenses budgeted in advance. We use a dedicated team of discovery lawyers lawyers who are hired and trained specifi cally for the legal review and analysis of records and electronically stored information ( ESI ) to perform our legal review. We have more than 300 workstations available to assist with record processing and in large, complex matters, the e-dat Group can grow its team as necessary to meet our client s deadlines and needs. We use advanced technology, practical experience, and know-how to reduce the size of the document population ultimately reviewed, lowering review costs in the process. Our team can assist with document review needs from collection to trial support, and everything in between (preservation and collection; attorney review for responsiveness, hot issues, and privilege; specialized processes for privilege and issue review; production in a variety of formats to the litigation support tool of choice; deposition and trial preparation). We use Cricket Boxes, LAW, Attenex Patterns Ringtail, Case Logistix, Concordance, and other hardware and software solutions to effi ciently and effectively process, review and manage electronic documents. We offer volume pricing for several of our processes (including attorney review), taking the risk from our clients for the effective and effi cient review of large volumes of ESI. We pride ourselves on our ability to provide cost-effective and predictable service to clients in an area of the law not traditionally known for its fi nancial predictability. Whether large or small, e-dat Group projects typically begin with the delivery of a detailed budget estimate. These budgets serve as both a benchmark and a communication tool throughout e-dat s engagements to avoid surprises. In all, the e-dat Group provides an alternative to both traditional and non-traditional review that is cost-effective and effi cient. Our competitive hourly rates for other services make the e-dat Group review team an excellent choice for your review projects.

3 Special Electronic Discovery Counsel In many cases K&L Gates is retained to serve as Special e-discovery Counsel working with your trial counsel of choice to respond to requests for ESI. The benefi ts of retaining special e-discovery counsel include: Service as Discovery Referees, Advisors, or Neutral Reviewers Our e-dat partners have developed and presented training programs to help train judges, arbitrators and mediators with regard to e-discovery issues. We have extensive experience with e-discovery and are available for appointment as special masters, neutrals or advisors to help judges, arbitrators, mediators and parties evaluate and resolve e-discovery issues in reasonable and cost-effective ways. We can also be retained by multiple parties in litigation or other matters to provide large scale processing, review and/or hosting services. By sharing the costs of these steps, and taking advantage of our effi cient processes and low pricing, parties in many cases can achieve substantial cost savings over the alternative of having the same records processed, reviewed or hosted multiple times or in multiple locations. Automated Litigation and Practice Support In the early 1990 s K&L Gates became one of the fi rst law fi rms to set up an automated litigation support department. Our automated litigation and practice support professionals aid K&L Gates lawyers and clients in organizing and managing very large volumes of ESI, hard copy documents, transcripts, trial exhibits, graphics, and work product. We use a unique combination of cutting-edge technology, industry standard and custom software, specially trained review lawyers, experienced support specialists, and streamlined review processes to review and process electronic information and hard copy documents. Over the years, we have managed records for a wide variety of commercial litigation: antitrust, class action, construction, contract, corporate, insurance coverage, intellectual property, product liability, toxic tort and other complex litigation matters, as well as complex governmental or regulatory investigations. Our review tools and techniques have also been used successfully in corporate due diligence and HSR reviews and for other transactional work. We work with our clients to develop a reasonable, responsible, and defensible plan for responding to their case and transactional needs. We design an information management structure and process customized for each matter, and can supply projected costs in advance based on document volume and the nature of the review. Our in-house litigation support applications include Attenex Patterns E-Discovery Solution, Ringtail, CaseLogistix, CaseMap, Concordance, Crawler, Cricket Box, LAW, Decision Tree, LiveNote, Sanction, Summation, TimeMap, TrialDirector, Virtual, and many other specialized applications that allow us the fl exibility to handle a wide variety of litigation and practice support needs. We also partner with experienced and knowledgeable vendors, when necessary, to assist in forensics collection, scanning, coding, production and exhibit creation and management for trial preparation. Our long-standing relationships, master service agreements, and preferred provider pricing with select prescreened vendors often allow us to obtain services for our clients at very high quality levels and with substantial cost savings. Focused attention on e-discovery issues, by lawyers who are experienced in handling such issues, helping to ensure that the right decisions are made and the right steps are taken to reduce risks and improve outcomes in the litigation; Using lawyers who are already knowledgeable in regard to e-discovery issues can reduce the need to fi nance the learning curve of lawyers who do not concentrate their practice in that area. It can also reduce reliance on outside vendors or consultants who may not have the legal background or litigation experience to provide the best advice; Where we have assisted clients with e-discovery readiness steps, or handled e-discovery issues in multiple litigations, the knowledge gained about the client s systems and practices from the earlier work improves effi ciency and reduces costs going forward, and allows for consistent treatment of records across cases; Having knowledgeable counsel to address e-discovery issues can improve credibility with the court; Having access to a library of forms, development of effi cient processes for handling ESI, and relationships with e-discovery vendors and consultants can further improve results and reduce costs in litigation; Our attention to the e-discovery issues in the case can free up trial counsel to devote more time and attention to the other aspects of litigation preparation that may be greater strengths for them, including focusing on the much smaller universe of relevant documents rather than a large volume of material irrelevant to the case. We also counsel clients on setting up in-house systems, selecting software, and contracting with vendors to address clients litigation support and record review needs.

4 We work as an integrated litigation team by partnering closely with in-house resources and trial counsel. We know the role of special e-discovery counsel and gauge our success not only on the output, but on a smooth, effective process. Retention & Recycle Database One priority for most business organizations is to implement an effective legal hold process as soon as litigation or an investigation is reasonably anticipated. This includes notifying relevant individuals to suspend their normal document retention practice in order to preserve documents relevant to the litigation/investigation. Best practices usually include tracking these notices in a meaningful way, providing appropriate periodic reminders and, ultimately, releasing holds at the appropriate time. To meet this need, we developed the Retention & Recycle ( R&R ) Database. This SQL database is a tool that we house and support internally to manage the legal hold process for our clients. This enables our clients to send out legal hold notices (which we or they can prepare) and copy an alias that includes a mail box at our offi ce. The is then loaded into the R&R, along with the case name, the attorney or paralegal contact for the case, and other relevant case information. From that initial notice we can automatically generate reminder notices, release notices, and a range of useful reports for monitoring the hold process. We work with clients to ensure that all of the information in the R&R is kept up-to-date and accurate. The employment status of persons under retention can be monitored so that the legal department is notifi ed and appropriate decisions can be made. The status of each matter is confi rmed regularly to ensure that people are not kept under legal holds unnecessarily. Using customizable reporting functions, the R&R tool can provide a wide range of useful information, including these standard reports: A list of all persons under retention currently (and/or historically) under Legal Hold for a particular matter. A list of all matters for which a particular person under retention is currently (and/or historically) under Legal Hold. A list of all notices and releases sent out for a particular matter (and a copy of each of these communications). A list of all notices, reminders and releases sent to a particular person under retention (and a copy of each of these communications). A list of all persons under retention currently under Legal Hold for any matter. A list of all matters for which persons under retention are currently under Legal Hold.

5 Our e-dat s David R. Cohen David Cohen is a partner in the Pittsburgh offi ce and co-chair of the e-dat group. A graduate of Harvard Law School, David has over 25 years of experience handling complex commercial litigation, focusing on document-intensive cases and technology-related issues. He has been admitted to courts directly or pro hac vice in thirteen states, the District of Columbia, and the Commonwealth of Puerto Rico. He obtained a landmark opinion in the Delta Funding case ordering 100% costshifting. David has authored many articles and two book chapters focusing on litigation strategy and e-discovery issues, has served on and chaired several bar association committees related to litigation technology, serves on the Advisory Committee of the Georgetown Law Center e-discovery Institute, and is a frequent presenter at CLE and in-house training programs nationwide. He originated the Scenes from an e-discovery Case vignettes used to train lawyers, paralegals, judges and mediators. David counsels numerous Fortune 500 and other companies on records management and e-discovery issues, and serves as special e-discovery counsel. David won a Vestige e-discovery Technology Champion award in Julie Anne Halter Julie Anne Halter is a partner in the Seattle offi ce. Her practice includes general business litigation, and since 2001, managing large, document intensive cases, specifi cally those involving electronic discovery. As a litigation attorney, Julie Anne understands the important role that proper document production methodologies and management play in litigation. Her experience directing discovery teams in document intensive litigation has allowed her to develop and expand skills in managing large document cases especially those involving electronic discovery. She is a frequent author and speaker on electronic discovery issues. Martha J. Dawson Martha Dawson is a partner in the Seattle offi ce and co-chair of the e-dat group. In her 25 plus years of practice, Martha has focused on commercial and complex litigation. As a former trial attorney, Martha understands the important role that document requests, proper document production, and the management of documents play in litigation. Since 1997, Martha s practice has focused on document intensive litigation, allowing her to develop and expand skills in managing large document cases, including, specifi cally, electronic discovery. Martha has actively participated in the discussions regarding the 2006 amendments to the Federal Rules of Civil Procedure. She is a member of the Lawyers for Civil Justice, and is also a frequent speaker and author on electronic discovery issues. Martha has worked on the design of several litigation support relational databases, served as a consultant in the development of the fi rm s Client Services Extranet sites, and worked closely with Attenex Corporation in the development of its Attenex Patterns TM E Discovery Platform, an advanced technology document mapping software tool.

6 Todd L. Nunn Todd Nunn is a member of the e-dat Group and represents numerous Fortune 500 and other companies in complex document production projects, including nationwide class actions, antitrust, and intellectual property matters. Todd managed e-discovery and document production for Microsoft in the Microsoft v. Google, Inc., Dr. Kai Fu Lee case. Todd also advises clients on e-discovery issues, document preservation and discovery response planning. This practice requires Todd to understand information technology and the legal implications of its use. He is a frequent writer and speaker on e-discovery and technology issues. He was the author of Chapter 2, Preservation of Electronically Stored Information, of the 2006 DRI Treatise, Understanding the New E-Discovery Rules. This chapter provides legal and practical guidance in meeting the litigation preservation obligations for electronically stored information. Todd has been appointed as a special master for e-discovery disputes and courts have relied on his testimony regarding e-discovery issues. Todd is actively involved in the development of discovery law, and e-discovery law in particular. For the last three years, he has been a member of the Washington State Bar Association Court Rules and Procedures Committee. He is the chair of the Electronically Stored Information Discovery Subcommittee, was a member of the subcommittee that completely revised Washington s Civil Rule 45 (dealing with subpoenas for documents and testimony) and he was also a member of the Working Group to draft amendments to GR 30, (governing the fi ling of electronic court documents in Washington). Thomas E. Kelly Tom Kelly is a partner in the e-dat Group in the Seattle offi ce. His has been a trial lawyer for over 30 years and his practice has included commercial disputes, class action cases, employment law litigation, trust and estates litigation, defense of professional liability claims, and litigation involving municipalities. He has extensive experience in dealing with attorney-client privilege and attorney work product issues. Tom is active in the area of legal ethics. He is the Chair ( ) of the Character & Fitness Committee of the Washington State Bar Association. Tom is also a member of the Professional Liability Litigation Committee of the Section of Litigation of the American Bar Association and a member of the Center for Professional Responsibility. Tom is a frequent speaker and panel member for CLE programs on confl ict issues and legal ethics. Thomas J. Smith Thomas Smith has practiced at K&L Gates since 1987 and is a partner in the fi rm s Pittsburgh offi ce. He concentrates his practice in the area of complex commercial litigation. He has litigation and trial experience in insurance coverage, environmental, and toxic tort matters, and has represented major industrial clients in numerous jurisdictions, including California, Connecticut, Massachusetts, New Jersey, New York, Pennsylvania, Texas, Washington, and Wisconsin, as well as in Canada. Thomas regularly counsels clients in matters involving complex records preservation and collection issues, legal holds, e-discovery, and records management and retention policies. He also regularly speaks at national and regional conferences on records management and e-discovery issues and has authored several articles and a book chapter on this topic.

7 Anchorage Austin Beijing Berlin Boston Charlotte Chicago Dallas Dubai Fort Worth Frankfurt Harrisburg Hong Kong London Los Angeles Miami Moscow Newark New York Orange County Palo Alto Paris Pittsburgh Portland Raleigh Research Triangle Park San Diego San Francisco Seattle Shanghai Singapore Spokane/Coeur d Alene Taipei Tokyo Warsaw Washington, D.C. K&L Gates includes lawyers practicing out of 36 offices located in North America, Europe, Asia and the Middle East, and represents numerous GLOBAL 500, FORTUNE 100, and FTSE 100 corporations, in addition to growth and middle market companies, entrepreneurs, capital market participants and public sector entities. For more information, visit K&L Gates comprises multiple affiliated entities: a limited liability partnership with the full name K&L Gates LLP qualified in Delaware and maintaining offices throughout the United States, in Berlin and Frankfurt, Germany, in Beijing (K&L Gates LLP Beijing Representative Office), in Dubai, U.A.E., in Shanghai (K&L Gates LLP Shanghai Representative Office), in Tokyo, and in Singapore; a limited liability partnership (also named K&L Gates LLP) incorporated in England and maintaining offices in London and Paris; a Taiwan general partnership (K&L Gates) maintaining an office in Taipei; a Hong Kong general partnership (K&L Gates, Solicitors) maintaining an office in Hong Kong; a Polish limited partnership (K&L Gates Jamka sp.k.) maintaining an office in Warsaw; and a Delaware limited liability company (K&L Gates Holdings, LLC) maintaining an office in Moscow. K&L Gates maintains appropriate registrations in the jurisdictions in which its offices are located. A list of the partners or members in each entity is available for inspection at any K&L Gates office. This publication is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer K&L Gates LLP. All Rights Reserved _2517

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