Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
Legal Tech: As Bankruptcies Grow, E-Discovery Counsels' Work May Become More Challenging
Businesses reeling after multiple international stay-at-home mandates are finding themselves out of options and filing for bankruptcy. The situation has led some law firms to cash in on bankruptcy service, and made many cautiously optimistic that the bankruptcy practice will be in high-demand during the current recession.
If it comes to fruition, a boom in bankruptcy proceedings could impact e-discovery counsel's workload as well. "If you have an uptick in bankruptcies, especially corporate bankruptcies, you will have a correlated uptick in e-discovery expertise," says Shannon Capone Kirk, Ropes & Gray's e-discovery counsel. "I think that's a fair projection to make."
Kirk's projection is based on the growing amount of digital communications that occur across companies. "We have seen in recent years an increase in the volume and nature of electronic discovery in restructuring proceedings," says Christine Payne, a partner at e-discovery boutique Redgrave, which announced a restructuring discovery team last month. "Not every restructuring is going to have discovery but those that do, it moves very fast and the data types are becoming increasingly complex. Parties are more interested in text messages and we have to keep up."
Suffice to say, the demands of collecting and reviewing all electronic data during a bankruptcy proceeding can be challenging.
"You have the accelerated pace for discovery in bankruptcy, [so] you have to have a good knowledge about the efficient technology and efficient workflows" she says. While not all bankruptcies entail a quick turnaround for discovery, "often [there's] a need to resolve the issue as soon as possible so creditors can be paid and resolution can be had," Kirk explains.
E-discovery conducted during a bankruptcy proceeding can also include unique data collection and privacy demands.
During Chapter 7, for example, collecting computers from departing employees should include recovering encryption keys, because once people leave it may be difficult to access data, notes Littler Mendelson shareholder and national e-discovery counsel Paul Weiner.
While Chapter 7 liquidation places a stronger emphasis on collecting data, Payne notes that Chapter 11 restructuring typically entails obtaining C-suite communications and assessing messages. "Restructuring discovery is mostly done by agreements and parties are incentivized to produce comprehensively and quickly. If the merits counsel [is] negotiating on behalf of a debtor and agrees to give officer-level communication, you have to be able to jump on it."
Still while they have their own unique challenges, e-discovery during bankruptcy proceedings also can be similar to other litigation, e-discovery counsel say. After all, understanding the scope, what's is needed and other rules agreed upon by the parties are essential for all discovery matters, including bankruptcy proceedings.
It's only bankruptcies' heightened timeline and unique collection challenges that really make the difference, Weiner explains.
"The fundamental issues that would come up in litigation will also arise in those [bankruptcy] cases but, because of the unique setting of bankruptcy, when things may be winding down, reorganizing or changing, those are when the unique circumstances come in," he says.
*****
Victoria Hudgins is a reporter for Legaltech News, an ALM sibling of Cybersecurity Law & Strategy.
This premium content is locked for Entertainment Law & Finance subscribers only
ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN ENTERTAINMENT LAW.
- Stay current on the latest information, rulings, regulations, and trends
- Includes practical, must-have information on copyrights, royalties, AI, and more
- Tap into expert guidance from top entertainment lawyers and experts
Already a have an account? Sign In Now Log In Now
For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473
How Secure Is the AI System Your Law Firm Is Using?
In a profession where confidentiality is paramount, failing to address AI security concerns could have disastrous consequences. It is vital that law firms and those in related industries ask the right questions about AI security to protect their clients and their reputation.
COVID-19 and Lease Negotiations: Early Termination Provisions
During the COVID-19 pandemic, some tenants were able to negotiate termination agreements with their landlords. But even though a landlord may agree to terminate a lease to regain control of a defaulting tenant's space without costly and lengthy litigation, typically a defaulting tenant that otherwise has no contractual right to terminate its lease will be in a much weaker bargaining position with respect to the conditions for termination.
Pleading Importation: ITC Decisions Highlight Need for Adequate Evidentiary Support
The International Trade Commission is empowered to block the importation into the United States of products that infringe U.S. intellectual property rights, In the past, the ITC generally instituted investigations without questioning the importation allegations in the complaint, however in several recent cases, the ITC declined to institute an investigation as to certain proposed respondents due to inadequate pleading of importation.
The Power of Your Inner Circle: Turning Friends and Social Contacts Into Business Allies
Practical strategies to explore doing business with friends and social contacts in a way that respects relationships and maximizes opportunities.
Authentic Communications Today Increase Success for Value-Driven Clients
As the relationship between in-house and outside counsel continues to evolve, lawyers must continue to foster a client-first mindset, offer business-focused solutions, and embrace technology that helps deliver work faster and more efficiently.