Canadian Lawyer

In practice, because few transactional lawyers involve e-discovery counsel in a proactive way, these risks are not often analyzed, depriving clients of the ability to ensure the risks are appropriately contained. if e-discovery risks may be present. It is appropriate to assume whenever there is a litigation portfolio or where there is significant litigation or the potential of regulatory investigation that e-discovery risks will arise. In such circumstances, it will be prudent to add e-discovery risk analysis to the due diligence checklist. The due diligence process will need to involve: a discussion about the target company's materiality threshold for establishing litigation holds; a review of the litigation hold implementation process at the target; an audit or due diligence into the specific litigation holds in place for material matters; workflow analysis of preservations in place; and determination of data collection and a tracing of the collected data assets. However, post-acquisition implemen- tation can involve material risks to the client. These can be minimized by drafting appropriate safeguards into the representations and warranties clauses, and to escrow clauses that provide for mitigation of risks, including litigation risks, through contingency funds set aside. Agreements could also be drafted to provide clarification and detail about specific actions to take regarding the implementation, maintenance, and auditing of litigation holds and other presentation preservation steps, including retention of hardware and physical media. In any event, e-discovery counsel or service providers should always be notified when assets over which there are litigation holds are at play in a corporate transaction. This way, e-discovery counsel can take specific steps to pro- tect clients against spoliation or other e-discovery risks, regardless of whether they are involved in the corporate due diligence. For example, where there is specific litigation that would be adversely affected by the inadvertent removal of a litigation hold during the transfer of corporate assets following a corporate transaction, e-discovery counsel can recommend the immediate collection of data potentially at risk. While this would result in immediate e-discovery costs to the client, a collection can be an effective hedge against loss of data and therefore an appropriate way to mitigate risk. D Dera J. Nevin is managing counsel, e-discovery, TD Bank Group. She can be reached at dera.nevin@td.com. The opinions expressed in this article are her own. AVAILABLE ONLINE AND IN PRINT REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! $ WIpN GACard le ift ting 500 Aepyour current lisnced a d er enh 3 Upgra ld or Silv 201 to a Go by June 30, in. listing hance to w for a c w for details See be lo With more than 179,000 page views and 31,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin: T: 416.649.9327 E: colleen.austin@thomsonreuters.com PLUS! Monthly draws from January to June, 2013 for a $100 Apple Gift Card just for asking how you can develop your business with an Annual Gold or Silver Enhanced Listing. Untitled-1 1 Visit www.canadianlawlist.com for full contest details. www.CANADIAN L a w ye r m a g . c o m 12-12-10 9:41 AM M ay 2013 19

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