Introduction: Heading Off Potential Problems at the Pass

When one company acquires some or all of the assets or divisions of another, the acquirer faces a recurring set of issues related to electronic information management. Whether the transactional context is a merger or asset purchase, there are many moving parts and traps for the unwary. Along with physical items, goodwill, employees and other contemplated elements of the transaction, typically the target has a mountainous set of electronically stored information (ESI) that needs to be pored over in the due diligence process.

Some or all of that ESI ultimately needs to be marshaled ? to facilitate efficient operation of the acquired business and fully functional use of the assets. This information can include the target?s accounting and tax records, documentation related to its products (and possibly the products themselves, if software is involved), personnel records, copies of relevant contracts and related negotiating history, intellectual property records and pleadings and discovery data from ongoing litigation.

Forethought is necessary to ensure the acquirer and its counsel follow best business practices and comply with legal obligations. These issues exist throughout the life cycle of the transaction and onward through the post-closing operations. Many key considerations come to the fore during the gathering, retention and storage of pertinent parts of the target?s vat of electronic information. If an acquisition were a rodeo, these three key aspects would be the wrangling, lassoing and roping events.

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