By Debora Motyka Jones, Esq.

Published on Tue, June 20, 2017

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As usual, EDI’s Summer Meeting in New York was a great event with informative panels and fun networking. It was there that I had the opportunity to moderate a panel entitled, Buyers, Cellars & Wind-Downs, in which industry experts came together to discuss key issues and risks associated with ESI management, as well as the preservation expectations companies face during acquisitions, mergers, and divestitures. In this recap blog, I will cover the main stages that come about in these situations and key tips from session panelists.

Stage 1: Planning – When an acquisition, merger, or divestiture comes about there is a lot to take in and it can be challenging to organize all information, data, people, etc. Here are a few key items to gather from the start:

  • Understand the company’s responsibilities.
  • Understand the integration timeline.
  • Understand who is leaving and when.
  • Draft a list of questions and prioritize.

Speaking of questions, you will have several questions that you will want answers to before you can start integrating or divesting. Here are some of the top questions to ask in these types of situations (depending on the situation these questions can be added to and take a different form):

  • What data sources and ediscovery tools do each of the companies have?
  • What are the litigation profiles and records management processes for each company?
  • Who owns the data and how will data preservation be handled moving forward?
  • How will areas where you cannot get information be handled?

 

Stage 2: Integration or Divesting – After the information gathering, the teams, technology, and processes begin to integrate so that the companies can move forward as one entity. At this point it is critical to hit a few points:

  • Ensure knowledge retention and make a plan for knowledge gaps. Get to those who may be leaving the company quickly before that knowledge disappears.
  • Develop a plan for systems integration/divestiture and who will own what systems.
  • Develop a team integration plan and assign key stakeholders. Make sure roles and responsibilities are clearly defined.
  • Ensure naming conventions for cases are similar across the board.
  • Send out a legal hold reminder for anyone on hold.
  • Conduct consistent testing with records retention to ensure preservation is ongoing and successful.
  • Look for policy synergies to get some quick wins.

 

Stage 3: Future Preparation – Being ready for a constant stream of M&A activity can be tedious. Here are three ways to proactively prepare:

  • Establish strong relationships with the key players (M&A counsel, litigation counsel, records management, IT, and security).
  • Establishing processes. If it worked once, it can work again. Find a model that works and stick with it.
  • Create a checklist for new entities and their cases (incorporating responsibilities, integration, and general preservation/collection/production obligations).
  • Leverage technology and take advantage of analytics.

 

Final Tips

Panelists agreed that there are three key practices to ensure a smooth process when it comes to mergers and divestitures:

  1. Get a seat at the table as early as possible so that you can get answers to some of the above questions.
  2. Stay nimble as there may be many unknowns.
  3. Use a reasonableness standard when making decisions throughout the process.

 

To continue this discussion or to ask questions, please connect with me at djones@lhediscovery.com.

About the Author
Debora Motyka Jones, Esq.

Vice President

As Vice President, Debora plays an essential role on the company’s executive team by collaborating around new markets, and bringing a customer-centric and pragmatic approach to achieving corporate and customer goals. She is responsible for building out a robust team of legal and technology experts in the eastern US, driving forward partnerships focused on delighting clients, and expanding the company’s brand through thought leadership events and new relationships. Debora’s background as a litigator and buyer, as well as her vast client-facing and operational experience will enable Lighthouse to provide the high-caliber, consultative client experience, the company is known for.

Debora has been with Lighthouse since 2009 and has made a significant impact on the company’s growth and business strategy during her tenure. With a background in litigation from practicing at law firms in both Washington D.C and Washington State, her expertise and deep understanding of complex ediscovery matters enabled her to create a resonating brand and architect the innovative products and services that keep Lighthouse at the forefront of the ediscovery market. She led the execution and implementation of the company’s rebranding in 2012 and developed the marketing department from the ground up. In addition, she has been instrumental in spearheading the company’s strategic technology partnerships, driving the formation of Lighthouse’s product strategy, and the evolution of Lighthouse’s SmartSeries. She also instituted and continues to maintain a client advisory board to ensure strong alignment with market demands. Finally, in 2015, Debora lead the company’s expansion to the eastern seaboard by managing the development the New York office and team, as well as expanding upon the company’s current set of services and clientele.

Prior to joining Lighthouse, Debora was a Complex Commercial Litigation Associate at Weil, Gotshal & Manges LLP in Washington, D.C. where she worked on matters such as the WorldCom and Enron bankruptcies. Her practice also included multi-million-dollar commercial and securities litigation, and internal investigations. While at Weil, Debora was recognized three times for her dedication to pro bono service. Debora also practiced as a litigation Associate at McNaul Ebel Nawrot & Helgren PLLC. Her practice included commercial, employment, and securities litigation, as well as legal malpractice defense.

Debora received a B.A. in Psychology from the University of Washington where she graduated magna cum laude. She received her law degree from The George Washington University Law School in Washington, D.C. She is admitted to practice law in New York State, the District of Columbia (inactive membership), and Washington State. Debora is Level II Pragmatic Marketing Certified. Debora is actively involved in the legal community as the former Director of Women in eDiscovery, as a mentor with Mother Attorneys Mentoring Association of Seattle, as an Advisory Board Member for the Organization of Legal Professionals, as the former Chair of the Association of Corporate Counsel (ACC)'s New to In-House Committee, and as a former board member of the Washington Women Lawyers (WWL). Debora was also recognized for her contribution to the ACC and was named 2012 WWL Board Member of the Year. Debora is a frequent speaker on eDiscovery strategy, a former instructor for the Organization of Legal Professionals, and a regular Lighthouse blog contributor.