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The Corporate Takeover: Seizing Control over e-Discovery

By Regina J. Jytyla

Corporate attorneys have long served as trusted advisers, helping organizations avoid and mitigate risk. The rapid proliferation of electronic data generated in recent years presents an increasingly significant risk to companies in the United States and globally: the expense of responding to an investigation or litigation that requires the identification, preservation, collection and production of electronically stored information (ESI). Until recently, corporations have unquestioningly turned the management of these disputes over to outside counsel, who have either managed it directly or partnered with outside technology service providers to assist in handling ESI.

Precarious economic times and advancements in technology are necessitating that corporations seek lower-cost, higher-return alternatives to former practices. The corporate attorney is leading the effort to reduce expenses yet still effectively minimize risk, creating and driving internal policies that help corporations anticipate and respond to litigation and investigatory inquires. In furtherance of this effort, corporations are making significant investments in in-house technology solutions. Corporate lawyers are also joining forces with knowledgeable colleagues in IT and other key departments, as well as with outside counsel and technology experts, in an effort to best protect corporations from the inevitable demands for preservation and production of ESI. This article discusses the trend toward increased corporate litigation investment, preparedness and use of internal and external resources to simplify the process of responding to document-intensive requests. It also highlights recent common-law examples of where corporate litigation preparedness and/or response efforts have fallen short, resulting in costly consequences.

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