In her decision, Judge Scheindlin created a framework for handling electronic discovery requests. She described what she considered the proper way to respond to requests for documents.
My electronic discovery group looked at the judge's recommended model, and liked what we saw. At the time, there weren't many 'best practices' guides we could rely on, and especially not any that were issued by a judge, and by a judge in our jurisdiction. So, we looked to the Zubulake decision to show us the way.
What is Judge Scheindlin's model?
She recommended the following:
1. A party's counsel should issue a 'litigation hold' to notify employees who may have relevant information that they could not destroy this information. The litigation hold should be kept 'fresh' in the minds of current employees, and be conveyed to new employees.
2. Counsel must talk to the 'key players' in the litigation, to make sure they understand the litigation hold, and to find out whether these employees store relevant information in non-standard or unusual places. If so, this data must also be preserved.
3. Counsel should obtain a copy of the relevant information. Counsel should also ensure backup media is kept safe, either by taking possession of it, or by telling the company's technology professionals that they must keep the relevant backup media separate from other media, and especially not to lose or destroy it.
What did we learn in following the model? Most importantly: Communication Is Key!
- A party's counsel must keep in close touch with the company's IT people, and keep reminding them they must make sure no relevant data is lost or destroyed.
- We also found that counsel must develop a deep understanding of how and where the company's data is stored. If you don't know what to include in a litigation hold, you may overlook vital information. As the defendant in Zubulake found, this is a bad thing.
- Finally, we had to ask key employees if they stored any data in any non-standard way. Different departments at my firm had different rules about storing company data, and it seemed as if each group of employees stored data in its own, unique way. It was a challenge to make sure we didn't overlook any source of relevant data. But it was a fun challenge, and each case was new and never a routine.
While the Zubulake case was the beginning of my discovery of e-discovery, it was only the beginning. In the weeks to come, I'll talk about other influences like the EDRM, the 2006 changes to the Federal Rules of Civil Procedure, and more...
(Post updated 5/28 to generalize names of companies.)
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