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Date: | Mon, 11 Dec 2006 19:33:20 +0000 |
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Rob-
Since lawyers only really listen to other lawyers, here are three ways you
might get law firm lawyers to take seriously their new obligations under
FRCP eDiscovery amendments:
1) reference Michael D. Gifford, Esq's analysis of Judge Judy Scheindlin's
Zubulake V ruling:
"Zubulake, for example, determined that the defendant had an obligation to
affirmatively protect and retain all readily available, directly accessed on
line data (hard drive data), as well as data relating to certain ‘key
players’ located on identifiable off line back up tapes, which were
otherwise overwritten on a periodic basis. To reach this point, the Court
had to very carefully consider and understand the nature and capabilities of
defendant’s systems; counsel can do no less and must take steps to guide the
client through this process. Zubulake held that outside counsel had an
obligation to consult not only with the client’s managers and ‘key players’
but also directly with its information technology staff to understand those
systems and clarify the retention requirements."
http://www.h2law.com/CM/BreakingLegalNews/BreakingLegalNews297.asp
2) reference Judge Judy Scheindlin's Zubulake V precedent-setting ruling and
commentary in the original
3) reference Judge Judy Scheindlin's recent webinar commentary in which she
explains how the new eDiscovery rules are intended to be interpreted on the
legal community, and how they are likely to be interpreted :
(my summary of three points Judge Judy made about counsel's particular
obligations)
i) rule 26(b)(2)(B) puts in-house and outside counsel on notice that:
they must come to the meet-and-confer armed with intimate knowledge of the
layout of their electronic information systems: all potentially relevant
records must be identified as to their location and accessibility, counsel
must identify what they will not search for, and counsel must have a
preference for file format of production in mind.
The way counsel can decide all this may be to interview their IT systems
people before the meet-and-confer and before depositions are requested by
opposing counsel.
ii) rule 26(b)(2)(B) puts in-house and outside counsel on notice that:
they are responsible for the 'litigation hold" process: they must define
records subject to the hold, disseminate this information to everyone it
might affect, monitor compliance.
The way to go about this is to create a cross-departmental litigation
response team which follows a process.
iii) rule 26(b)(2)(B) : counsel must have pre-prepared justification for
any claims of inaccessible records, and must provide opposing counsel with
some basic data about the inaccessible records to allow opposing counsel to
challenge the inadmissability claim
Maureen Cusack, M.I.St.
http://www.maureencusack.net
"There are two kinds of adventurers; those who go truly hoping to
find adventure and those who go secretly hoping they won't."
-Rabindranath Tagore
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