Page 12 - EDiscovery

S12 | MONDAY, MARCH 16, 2015 | E-Discovery
| NYLJ.COM

Preservation
Emails
In considering an appropriate sanction, the the ESI? Do the custodians know how to pre-

court recognized that while a court should serve in place?
always impose the least harsh sanction, the • When was the preservation trigger? How
« Continued from page S5
choices include (1) further discovery, (2) cost- long after the trigger was the litigation hold « Continued from page S3
ed emails, UBS was forced to pay all costs shifting, (3) ines, (4) special jury instructions, issued? Were documents lost in the interim? emails in their own secure international data
and attorney fees for any depositions or re- (5) preclusion, and (6) the entry of default What efforts might be made to retrieve any centers within the necessary jurisdiction.
depositions, and UBS was ordered to pay all judgment or dismissal (also known as “ter- such lost documents?
However, as more and more providers move
costs of the discovery motion. In short, UBS minating sanctions”).
• What other documents or ESI might be to storing data in the cloud, it is important
paid a high price for the attorneys’ failures The court found the conduct of deleting that legal counsel understand where exactly
in partnering with the client throughout the emails and then trying to cover it up and relevant? How much of it is there? Where is it? their data will be stored and the security lev-
• Do other companies have relevant ESI
entire preservation process.
blame others was an “untenable litigation that may arguably be in your care, custody
els of that location. The presence of a pro-
position” and required the ultimate sanc- or control?
vider’s international facilities may also be
Sanctions for Willful Violations
tion—termination. Thus, the court entered • Do you have a policy or schedule as to
advantageous when time is critical, as this
judgment for the plaintiff.
how long they keep different categories of means that the provider is able to host data
A decade after Scheindlin issued the deci- documents? Do you enforce the policy?
in multiple jurisdictions, giving more options
sion in Zubalake discussed above, she con- Practice Tips for the Diligent Practitioner
to a law irm or legal department that has
sidered the appropriate penalty for a party • Does some of the ESI exist on employees’ cases around the world.
who intentionally destroyed emails of the key While there is no form letter per se, there smart phones, laptops or home computers? When the litigation is over, the parties
Sekisui• Do you have a disaster recovery plan for
players. In , plaintiff Sekisui failed to are some very basic questions that any com- ESI? Are there back-up tapes or other media? involved have multiple options available for
institute a litigation hold until 15 months after pany should expect its lawyer to ask up front. • Are the back-up media truly reserved for the storage or handling of the truckloads of
sending a notice of claim to defendants. In They include:
disasters or are they occasionally accessed emails gathered through the e-discovery pro-
the meantime, emails of key employees were • How do users manage their email?
if important documents are inadvertently
cess. Remember these are copies; the origi-
deleted.8 The magistrate judge declined to • Are there limits or quotas as to how much nals remain on the servers where they were
impose sanctions, but Scheindlin reversed.
storage is allotted?
destroyed?
irst located. For a fee, they can continue to
The court cited to the controlling case • Can users “archive” email if their active The foregoing list of questions is not
be stored with the e-discovery provider, they
regarding adverse inferences, Residential storage is limited? How many do this? Where exhaustive, but illustrative of the collaborative can be returned to the attorneys and their
Funding, which set forth three requirements.9 are the archives located?
process in which clients expect their attorneys clients, or they can be destroyed.
to engage to protect them from sanctions,
It must be established (1) that the party with • What happens to employees’ email or whether or not the proposed amendment to With an expected 5.2 billion email accounts
control over the evidence had an obligation computer system when they leave the com- by 2018, there is little doubt that the number
to preserve it at the time it was destroyed, pany?
Rule 37(e) is adopted.
of emails tied to litigation will continue to
(2) the records were destroyed with a cul- • Have employees been using personal increase. This creates an ongoing need to
pable state of mind, and (3) the destroyed email accounts or mobile devices for com- Conclusion
apply technology to the examination process.
evidence was relevant.10
pany business?
Through the use of email threading, attorneys
The court ultimately imposed a scathing • If an email is not moved to a folder, is it The attorney must engage the client as a can gain eficiencies throughout their review
adverse inference jury instruction plus mon- automatically deleted? If so, after how long? partner in the efforts to preserve—only then and save time and money as well as identify
etary sanctions of reasonable costs and attor- Once that happens is it really gone?
are the requirements to preserve electronic key information sooner in the process. This
data satisied. So the next time a colleague
ney fees associated in bringing the motion.
• Does the email system automatically can give them a competitive advantage and
Sanctions, however, do not stop at the “journal” all incoming and outgoing email? asks for a form preservation letter, consider may ultimately help them win more cases
adverse inference. Some conduct is simply Does it “roll off” after one month? Six months? recommending the decision of Zubulake v. while saving their end client money.
too egregious for any sanction other than A year?
UBS Warburg. You will be doing the attorney
termination of the action. An example of such • Where are the email servers located? and the client a signiicant favor.
Reach your peers to
egregious intentional conduct was set forth Are they backed up onto tapes or some other
in Regulatory Fundamentals Group.11 In this media? How frequently? Does the client use •••••••••••••••••••••••••••••
generate referral business
case, the defendant had a practice of manually cloud storage?
1. Dorchester Fin. Holdings v. Banco BRJ S.A., 2014 U.S. LAWYER
deleting emails to save space, and continued • Who is being accused of wrongdoing Dist. LEXIS 172958, 7-9 (S.D.N.Y. Dec. 15, 2014).
2. Id. at 20.
doing so after litigation had commenced. The and what records beyond just email might 3. Discovery Subcommittee Report, Rule 37(e), Advi- TO
defendant also paid for a third-party vendor be at issue?
sory Committee on Civil Rules, April 10-11, 2014, p. 369.
LAWYER
email service, but canceled the email service • What other “document custodians” may 4. Id. at p. 377.
after litigation had commenced, resulting in be involved?
5. Id.
the destruction of all emails on the vendor’s • Have you issued a written litigation hold 6. Zubulake v. UBS Warburg, 229 F.R.D. 422, 430
(S.D.N.Y. 2004).
servers. When it became clear to the defen- to these document custodians? Did the hold 7. Id. at 432.
Contact
dant that this was improper, the defendant include IT staff?
8. Sekisui Am. v. Hart, 945 F. Supp. 2d 494, 507-08
tried to blame the deletion on the vendor.
• When was the hold issued?
(S.D.N.Y. 2013).
Indera Singh at
9. Residential Funding v. De George Financial, 306 F.3d
(212) 457-
The court was not persuaded by the • Is everyone following the hold? How do 99 (2d Cir. 2002).
9471
defendant’s efforts, which it characterized you know?
10. Id. at 502.
11. Regulatory Fundamentals Group v. Governance
or [email protected]
as no more than efforts “to create a helpful • Has there been an afirmative decision Risk Mgmt. Compliance, 2014 U.S. Dist. LEXIS 107616
record” and an attempt to “transfzer blame.”
to “preserve in place” rather than to collect
(S.D.N.Y. Aug. 5, 2014).

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