Migrated from eDJGroupInc.com. Author: Mikki Tomlinson. Published: 2014-08-05 20:00:00Format, images and links may no longer function correctly. 

When it comes to M&A activity, the legal departments are typically last on the list of departments scheduled for merger planning.  This is not unreasonable.  “Business first” makes sense.  It does, however, call for some stress and concern of potentially increased risk in the general counsel’s office(s).   

From the eDiscovery perspective, several questions arise as soon as a merger or acquisition is announced.  Does the other organization have legal hold and discovery response procedures?  What are their preservation practices?  What eDiscovery technologies and relationships do they have? How different are their practices and technologies from ours? Are the legal departments going to merge or continue to run independently?

These questions could be explored in advance.  Unfortunately, those responsible for managing eDiscovery in the organization oftentimes hear the M&A news at the same time the public does.  The questions taking priority then becomes who and how is the responsibility for legal hold and discovery response to be handled until the details are ironed out. 

Once an organization works through the initial reaction mode, then the other eDiscovery questions can begin to be addressed.  The process of working through a merger of legal departments is long and reaches beyond the legal departments themselves.  Legal must also be aware and included in the unification and addition of corporate technologies. 

In addition to discovery response questions, enterprise wide policies must also be questioned.  Does the other organization have a BYOD policy, a records policy that covers electronically stored information, etc.?   Data sources must also be addressed.  Are there data archives, legacy backup tapes, file shares or inactive SharePoint sites left behind after a migration? 

Tackling the legal hold and discovery response interests in merger and acquisition situations must be approached with a strategic vision.  Appropriate project planning and prioritization, while making allowances for surprises, are a must.  As soon as is practical, liaisons from each legal department should be appointed to see the process through. 


Mikki Tomlinson can be reached at mikki@eDJGroupInc.com for offline comment, questions or consulting. eDJ’s 2nd annual survey on Corporate Legal Hold Notification and 1st annual survey on Law Firm Legal Hold Notification are active.  Click here to take the survey and get premium access to profiles and survey results. 

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