Page 5 - EDiscovery

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E-Discovery | MONDAY, MARCH 16, 2015 | S5

and the most stringent remedies expressly as to what is required and what conduct carried out. By now, more than 10 years after backup procedures and the actual (as
opposed to theoretical) implementation
require an intent to deprive. The court may: triggers exposure.
the holdings in Zubulake, one would think that
(1) Order measures no greater than these responsibilities would have become of the irm’s recycling policy.
necessary to cure the loss of informa- Attorney Responsibilities Deined
second nature.
• Compliance will also involve commu-
tion, including permitting additional dis- Zubulake v. UBS Warburg6—A “failure nicating with the “key players” in the liti-
covery; requiring the party to produce Over a decade ago, the decision in Zub- to communicate.” In Zubulake, despite sig- gation to understand how they stored
information that would otherwise not be alake spelled out for practitioners the need niicant efforts to preserve ESI, the court criti- information. . Unless counsel interviews
reasonably accessible; and ordering the for attorneys to engage the client, which cized the attorneys for failing to request ESI each employee, it is impossible to deter-
requires partnering with the client in the effort mine whether all potential sources of
party to pay the reasonable expenses to locate, gather and preserve relevant ESI. from a key employee, failing to give a litigation
caused by the loss, including attorney
hold to another employee, and failing to take information have been inspected.
fees.
Attorneys must come to an understanding action to safeguard backup tapes that could • Counsel may be “creative” in its
(2) Upon a inding of prejudice to another of the client’s unique data storage situation, have mitigated the destruction of evidence. approach to large clients with many
party from the loss of information, order and discuss with the client how and where Judge Shira A. Scheindlin quoted from the employees. It may be possible to run
measures no greater than necessary to electronic data is stored and which key play-
ilm “Cool Hand Luke” to describe the situ- a system-wide keyword search; coun-
cure the prejudice.
ation: “What we’ve got here is a failure to sel could then preserve a copy of each
communicate.” The judge, however, was not “hit.” Although this seems burdensome,
(3) Only upon a inding that the party
acted with the intent to deprive another Compliance with the duty to amused and ultimately imposed heavy sanc- it need not be.
party of the information’s use in the liti- tions on UBS.
• Counsel does not have to review these
gation,
preserve requires an “active The court made a series of useful ind- documents, but only see that they are
(A) presume that the lost information ings that spell out exactly what is required retained.
was unfavorable to the party;
partnership” between the of attorneys to properly assist their client
attorney and the client to in complying with document preservation:
In making these indings, the court express-
(B) instruct the jury that it may or must ly rejected the notion that an attorney com-
presume the information was unfavorable address the client’s indi- • Counsel must oversee compliance with plies with the obligations simply by using a
to the party; or
the litigation hold, monitoring the party’s form preservation letter:
(C) dismiss the action or enter a default vidual retention protocols, efforts to retain and produce the relevant In short, it is not sufficient to notify
judgment.4
requirements, capabilities and documents.
• Once a litigation hold is in place, a party all employees of a litigation hold and
The proposed amendment strikes at the limitations.
and its counsel must make certain that all expect that the party will then retain
heart of the purpose of sanctions. In fact, and produce all relevant information.
reference to the word “sanction” is deleted sources of potentially relevant informa- Counsel must take afirmative steps to
as it “generates overtones of professional tion are identiied and placed “on hold.” monitor compliance so that all sources
responsibility and of censure . whereas ers have discoverable evidence. The attorney • To do this, counsel must become of discoverable information are identiied
the same measures in other settings might must craft a plan for the client to follow that familiar with the client’s data retention and searched.7
rightly be viewed as curative rather than complies with preservation responsibilities. architecture. This will invariably involve
punitive.”5 If the amendment is adopted, In addition, the attorney must follow up and speaking with information technology The jury was given an adverse inference
practitioners should enjoy greater clarity
conirm that the steps of the plan have been
instruction with respect to delet- »
personnel who can explain system-wide
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