Today, e-mail is as second nature to most attorneys and law offices as sending a letter or fax. Hardly anyone ever thinks twice about sending, receiving or even thinking about the content they put into the average e-mail message. Most even think a step further and really think that an e-mail is just like a conversation, <i>i.e.</i>, once it's over the conversation ceases to exist.

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A few years ago, Kennedy Childs &amp; Fogg, P.C., a law firm with offices in Denver and on the Western Slope with 42-plus trial lawyers, had reached a crossroads when it came to time, billing and accounting system: Either spend a significant amount of money upgrading to the next version of Thomson Elite (around $120,000), including adding multiple SQL servers with ongoing maintenance issues, or convert to a newer system with the same ' or better ' features that would be both easier to use and less expensive. The firm chose the latter.

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The intent of the new amendments is for cases to run smoother and focus on the merits rather than on the electronic discovery process. With the new elements in the 'meet and confer' conference requirement, counsel is now expected to understand its client's information infrastructure in order to negotiate what material will be disclosed, how it will be produced and in what timeframe. <br>Most alarming is that all of this discussion and a good part of this activity, under FRCP Rule 26(f), must take place and be presented to the court within 120 days of lawsuits being served in federal court.

The net result is that electronic data discovery (EDD) has increased the cost of litigation significantly. The largest component of EDD costs ' by far ' is attorney review. Analysts estimate that corporations spend between $10 billion and $15 billion per year on attorney review, and many corporate legal departments report that attorney review of electronic data now represents the single largest line item on their budgets.

Recent rulings of interest to you and your practice.

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An end-of-year (Nov. 29) Delaware Chancery Court decision, <i>Esopus Creek Value LP v. Hauf</i>, is receiving a great deal of attention from corporate transactional and corporate restructuring attorneys alike. In Esopus, the Delaware Chancery Court prevented a financially sound company that was prohibited by federal securities law from holding a shareholder vote, because it failed to meet its reporting requirements, from executing an agreement outside of bankruptcy to sell substantially all of its assets under Section 363 of the Bankruptcy Code without first obtaining common stockholder approval as required under Section 271(a) of the Delaware General Company Law ('DGCL').

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The image of bondholder activism in many quarters is one of rapacious bondholders aggressively pursuing a ruthless quest for returns. The reality is far more complex, but the outcome of particular cases may be surprisingly predictable for the astute analyst.

Claims trading has become a part of the bankruptcy fabric as a short-term investment vehicle and a long-term opportunity with the intention of obtaining a strategic position in the confirmation process. It is now clear that the acquisition of a claim carries certain baggage, including the opportunity to be sued for actions that relate to the claim or other types of avoidance actions which can significantly delay the distribution on the claim. The baggage associated with a transferred claim has been articulated by Bankruptcy Judge Arthur Gonzalez in the Enron cases, where he held that a transferee's claim against a bankrupt's estate can be subordinated or disallowed solely because of the transferor's misconduct or failure to return avoidable transfers even when there is no finding of wrongdoing or receipt of avoidable transfers by the transferee.