By Richard L. Wasserman, Chair of the ESI Working Group, Venable LLP (Baltimore, MD)

Electronic discovery is a current hot topic in the litigation world, but surprisingly little has been written about it from a bankruptcy perspective in both the caselaw and commentary.  An ABA Working Group, comprised of attorneys, judges and academics from across the country, was formed by the Bankruptcy Court Structure and Insolvency Process Committee of the Business Law Section of the American Bar Association to study and prepare a report on electronic discovery and electronically stored information (ESI) issues in bankruptcy cases.  The Working Group has prepared a Best Practices Report.  Click here for a copy.  The final draft of this report in substantially the form attached, subject to final editing, was published in the August issue of The Business Lawyer.

The Best Practices Report covers both debtor and creditor obligations to preserve electronically stored information (ESI) not only in connection with adversary proceedings, but also contested matters and the bankruptcy case itself.  The Report is divided into six sections.  The first three sections discuss ESI principles and guidelines in large chapter 11 cases, middle market and smaller chapter 11 cases, and chapter 7 and chapter 13 cases.  Those sections are followed by sections discussing ESI issues in connection with filing proofs of claim and objections to claims, creditors’ obligations in connection with electronically stored information, and rules and procedures applicable to ESI in adversary proceedings and contested matters in bankruptcy cases.

It is the hope of the Working Group that the Report will be a helpful resource guide for attorneys and judges in considering and addressing electronic discovery and ESI issues in bankruptcy cases.

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Richard Wasserman is the senior partner in Venable’s bankruptcy and creditors’ rights group. He is a Fellow in the American College of Bankruptcy and focuses his practice in matters involving bankruptcy and bankruptcy-related litigation, creditors’ rights, secured transactions, workouts, reorganizations and restructurings. Mr. Wasserman has been recognized in The Best Lawyers in America, Who’s Who in America, Who’s Who in American Law and The International Who’s Who of Insolvency & Restructuring Lawyers. Mr. Wasserman has extensive experience representing clients in major business, commercial and real estate bankruptcy, workout and reorganization matters and has also served as a Chapter 7 and Chapter 11 Bankruptcy Trustee, as a court-appointed Examiner and as a mediator in bankruptcy adversary proceedings and claims resolution proceedings. Mr. Wasserman is a frequent lecturer on bankruptcy and workout-related topics.

A wealth of experience with different types of businesses enables Mr. Wasserman to offer clients impressive knowledge together with proven successful performance. Mr. Wasserman’s work includes the full range of bankruptcy and workout representation of creditors (secured and unsecured), creditors’ committees, trustees, Chapter 11 debtors-in-possession, troubled companies, and prospective purchasers of assets from companies in bankruptcy. Recent cases include Mr. Wasserman’s service as a Chapter 11 trustee in eighteen real estate-related cases in the U.S. Bankruptcy Court for the Southern District of New York (In re New 118th LLC, et al.), his role representing the Enron bankruptcy estate as special litigation counsel and representing creditors’ committees in cases in the Eastern District of Virginia (In re Workflow Management, Inc.) and the Northern District of Texas (In re DLH Master Land Holding, LLC), and his service as a mediator in various Circuit City preference avoidance actions and disputed claims resolution matters. In addition to extensive experience in high profile bankruptcy litigation matters, Mr. Wasserman has experience with real estate, financial products and services, health care, hospitality, retail, marketing, distribution, telemarketing, government contracts and technology companies in bankruptcy and workouts. Mr. Wasserman also provides experience advising corporate boards on significant reorganization and restructuring alternatives and working together with corporate management and other outside advisors including investment bankers, accountants, and public relations consultants.