As I was reviewing notes and articles regarding Mergers & Acquisitions (M&A’s), I was reminded of a conversation I had with a couple of actual experts on the topic. As casual conversations about any worthwhile eDiscovery-related subject have a tendency to do…and it seems almost I can tie eDiscovery into pretty much any business discussion…we got talking about some benefits of strong due diligence in identifying relevant M&A documents. One future benefit we talked about concerned data gaps and issues in litigation.

It seems as if, on almost any given day, at least one story will pop up on a legal case, where one or the other party (or both) just can’t seem to find all relevant documents. This problem is magnified for companies with new or unfamiliar documents they are responsible for through a recent merger or acquisition. The party may have committed one or two common errors – not keeping and understanding the merged or purchased file structure; or, not identifying and documenting data gaps as the due diligence is performed or the data migration/transfer is conducted. A copy of the data structure – shared drive file categories, SharePoint sites, or other repository definitions that the previous data owners used to identify and store their documents – should always be retained for future reference. Even if the migrated data is accommodated in your current structure, this legacy information can prove useful as supporting documentation in discussions with opposing counsel and court.

Data gaps relevant to the merger or purchase should, of course, be addressed at the time to satisfy due diligence. However, sometimes things are just overlooked, and there also may be data types not called out in due diligence that should have been included in the transfer as part of the former company’s operations. These gaps could become important during future litigation, or to satisfy post-closing litigation; it’s best to be cognizant of this and have qualified reviewers looking for information gaps and flagging those areas at least for further review.

A second benefit of due diligence lessons learned during M&A regards data privacy issues. The merged/purchased company may very possibly have documents that qualify for transfer that contain sensitive PII, or Personally Identifiable Information about employees, clients or customers. Even though it may seem to be an intrusion on time and energy that is sparse during the M&A, to say the least, you can plan ahead to flag PII or other privacy-sensitive data in a manner that is easy to go back to and pull up after the dust settles. You can then formalize the identification and take whatever actions required by your company’s Privacy Policy to isolate and protect that data.

These two areas – operational data identification/gaps, and privacy-related data identification, are a couple of benefits you can capitalize on during M&A’s that may have great value down the road, with little additional effort necessary at due diligence.