June 23, 2005

Jenner & Block Partner Robert L. Byman helped spearhead a panel offering timely advice on
best practices in e-discovery matters at a June 23 SuperConference breakout session entitled, “How Plaintiffs Use E-Discovery as a Weapon.”

Joining Mr. Byman were panelists Eileen Burns Lerum, Vice President & Senior Litigation Counsel, Alcan Corporation; Kimberly C. Bartels, Senior Corporate Counsel, H&R Block, Inc.; and Michael Pontrelli, LexisNexis Applied Discovery.  Jenner & Block Partner Matthew M. Neumeier introduced the panel.

“Electronic discovery practices have become far more sophisticated in the past few years,” said Ms. Lerum.  “It is critical to get the staggering number of electronic records under control,” or your company could face serious consequences, she warned.

Mr. Byman, who was part of the legal team in Colman Parent Holdings v. Morgan Stanley, which recently won a $1.45 billion jury verdict, advised companies to ensure that they have – and follow – e-mail maintenance procedures.

Ms. Bartels noted that plaintiffs want, and will increasingly demand, access to electronic files because the sheer volume and informal nature of today’s electronic communications invites candor, casual statements, and eventually, damaging statements.  “Juries believe that e-mails truly reflect the attitude of a company,” she said.  “And we send over 9 billion e-mail messages a day,” ninety nine percent of which is created and stored electronically, she said.

The key to successfully managing this daunting amount of data is to discuss in advance how it will be produced to opposing litigants in the event of litigation, advised Mr. Pontrelli.  “By being proactive, you’re keeping control over what seems like an insurmountable task.”

Mr. Byman illustrated this point by explaining how Morgan Stanley’s failure to produce electronic documents eventually led to a $1.45 billion jury verdict.

My advice is very simple, Mr. Byman concluded.  If you are on the receiving end of an e-discovery request, answer the court’s questions about your company’s procedures, and answer them truthfully.  “And when you make a mistake, as you surely will, don’t try to cover it up.”