Mergers and Acquisitions in the Era of Ediscovery

The slow uplift in the economy has caused a bump in mergers and acquisitions not seen in a decade, but large mergers look different today than they did ten years ago. Companies now deal with vast amounts of electronic data which must be managed and produced should the government seek documents prior to approving the deal. It is imperative that corporate counsel pay special attention to ediscovery practices now more than ever before.

On this very topic, I recently authored the article “E-Merging: Mergers and acquisitions in today’s era of big data” for the Inside Counsel  publication.

My Inside Counsel article discusses how if a merger is in your organization’s future, tackling the organization’s treasure trove of data after the Hart-Scott-Rodino (HSR) process has begun is an uphill battle. Merging companies must be prepared to advocate for themselves. They must aggressively negotiate electronic data protocols, including:

• The custodians of the data.
• The types of searches or key words used to sort through data.
• The technologies the government may use to sort through files.

When a company does not know its data, that information can be used against it in a possible attempt to block the deal. To ensure the company knows its own data system, IT and legal should have detailed records of back-up tapes, scheduled data sweeps and know how to use innovative techniques to analyze the data.

Whether or not a merger is on the horizon, there are several additional steps which companies can take now. These steps will not only help organize data, but also make it accessible for any future ediscovery obligation:

• The company should enlist a response team whose purpose is data control.
• The company must ensure that there is a data map of all company information which is reasonably accessible.
• The company must be up-to-date on audits regarding any pending litigation and necessary preservation.
• Of course, the company must ensure the data storage systems are useable.

Companies that have taken pre-emptive steps in data management will be prepared to deal with such challenges – whether or not the organization will be e-merging any time soon.