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On Bank Litigation–E-discovery (Part 4): Establishing a Data Assembly Process

The final segment of Stan Gibson’s series on Litigation Readiness and Electronic Discovery addresses the practical problem of assembling and collecting all of the data needed for use in the lawsuit. Stan’s point is that advance preparation, a luxury in today’s fast-paced, cost conscious world, pays dividends when a lender is faced with short time deadlines to respond to massive requests to produce documents and electronic records.

Thanks to our many years of hands-on experience, the JMBM Special Assets Team™ understands how lenders keep records, both electronically and on paper during this transitional age. We know how lenders make credit decisions, and we know where to look for evidence of those decisions and how to present them in court. JMBM Special Assets Team™ members have looked through countless credit files, legal files, desk files, and e-mails tucked away in electronic folders on a computer somewhere in the bank. We’ve looked at records of checking accounts, collateral reports, credit write-ups and variances. We know what the records mean once they are uncovered, and how to work with the right people in the bank to fine-tune the message for presentation to the court.

Stan Gibson’s final segment outlines creation of a standard Electronic Discovery Reference Model. If your bank lacks one, Stan is the lawyer to help put one together – before there is a litigation crisis. And if that lawsuit should strike before a plan is in place, the JMBM Special Assets Team™ can work with your institution to locate and identify the necessary documents, and more important, to explain what they mean in a way that a court and jury can understand.


Establish a Data Assembly Process

This is the last article in a series on litigation readiness and electronic discovery. Get caught up by reading the first three posts on Record Retention, the Litigation Hold Process, and Creating a Data Map & Assembling a Discovery Response Team.

There are a couple ways to go about actually assembling electronic data when the time comes. Your legal department might preserve a large range of documents, then cull files as they determine which ones are unnecessary. Or, they may collect only the necessary electronic data and hold it until the matter is completely resolved.

Once your legal department decides how the information is going to be collected, it should follow a standard Electronic Discovery Reference Model, which establishes guidelines for electronic discovery, including interviewing witnesses and custodians of electronic data, collection, analysis and post-production review. You can find more details on

A litigation readiness plan will allow your company to meet its responsibilities in a timely and comprehensive matter, alleviating some of the headaches of legal action. Though it may cost time and money to prepare now, you can be sure it will be worth it to avoid costly fines and damaging legal sanctions.

This is Dick Rogan, bank lawyer and author of, signing off for now. Join us again soon to check out what’s new in the World of Workouts.

Year after year, day after day, workout professionals in the know rely on JMBM’s Special Assets Team™ to handle problem commercial and real estate loans. Whatever problem loans you have, chances are, we’ve seen it. Give us a call.


Our Perspective. JMBM represents commercial banks, special servicers, private lenders, asset-based lenders, hard money lenders and factors. We help lender clients throughout the United States craft business and legal solutions to their commercial and real estate troubled loans. For more information, please contact Dick Rogan at, or (415) 398-8080.

Richard A. Rogan is Chair of the JMBM Special Assets Team™. He also serves as the co-managing partner of JMBM’s San Francisco office and co-chair of its Bankruptcy Practice Group.

JMBM’s Special Assets Team™ has represented hundreds of lenders in California and throughout the United States. We regularly appear in bankruptcy courts, district courts and superior courts. We are proud to serve as trusted counsel and advisors who look for a business solution and try to help lenders find the best possible resolution for each troubled loan. Whether a loan is being newly documented, restructured or litigated, JMBM’s Special Assets Team™ has the skill, know-how and experience to solve your problem in a practical no-nonsense way.

NOTE TO CONSUMERS: As a matter of Firm policy, JMBM does not represent individual consumers who have disputes with their lenders. Many lenders have specialized consumer workout professionals who have the time to help consumer borrowers. There are many fine attorneys who specialize in representing consumers. Individuals with consumer lending problems should contact a lawyer or law firm who specializes in consumer insolvency and bankruptcy in their local area. When in doubt, we suggest you contact your local bar association’s Lawyer Referral Service. [For example, see Bar Association of SF or LA County Bar Association Lawyer Referral Services]

JMBM does not provide legal advice to consumers, and cannot respond to consumer inquiries.