The Zubulake opinion and, in some senses, these standards were applied in Mosaid v. Samsung very recently.  Samsung was seriously sanctioned as a result.  In that case, the judge's goals with the sanctions for spoliation were to "punish you, deter others, and restore the claimant."   This is a shot across the bow -- deter others is pretty clear.  
 
Because the adversarial system rewards the better prepared and the judicial system and the adversarial system both punish the under-prepared, I think we will see "best practices" in managing preservation and production very quickly evolve into common practice.  These practices will include affirmative and repeated communications, monitoring of compliance, more interviewing of affected parties, and more formal collection efforts.... and obviously, better record keeping.
 
Deidre Paknad
 
PSS Systems
www.pss-systems.com
Sponsor of CGOC
Compliance, Governance, & Oversight Council
www.cgocouncil.com

________________________________

From: Records Management Program on behalf of Larry Medina
Sent: Thu 11/4/2004 9:26 AM
To: [log in to unmask]
Subject: RAINdrip: Advice for Litigation Holds and E-Discovery



http://www.mondaq.com/article.asp?articleid=29351&email_access=on

 From the article:

In Judge Scheindlin's view, it is not sufficient for counsel to simply
notify employees that there is a litigation hold and expect that the party
will then retain and produce all relevant information. Counsel must take
reasonable affirmative steps to accomplish the following: (1) "identify
sources of discoverable information"; (2) "put in place a litigation hold
and make that known to all relevant employees by communicating with them
directly"; (3) reiterate the litigation hold instructions "regularly" and
"monitor compliance so that all sources of discoverable information are
identified and retained on a continuing basis"; and (4) "call for employees
to produce copies of relevant electronic evidence, and...arrange for the
segregation and safeguarding of any archival media (e.g., back-up tapes)
that the [client] has a duty to preserve." See id. These steps are likely to
become the standard of "best practices" for counsel in future litigation.
While most of these practices are likely frequently followed, Judge
Scheindlin's prescription for regular reiteration of the litigation hold and
monitoring compliance probably are not common practices today. Given the
notoriety of the Zubulake case and Judge Scheindlin's reputation, these
practices will likely be adopted by other courts in evaluating electronic
discovery issues and requests for sanctions. Accordingly, firms or counsel
in any pending litigation or agency investigation who fail to adopt these
practices act at their peril.



@@@@@@@@@@@@@@@@@@@@@@
Larry Medina
...not all information is created equal !!

LLNL Records and Archives Group
B-411, Room 1307   2-7628
@@@@@@@@@@@@@@@@@@@@@@

List archives at http://lists.ufl.edu/archives/recmgmt-l.html
Contact [log in to unmask] for assistance

List archives at http://lists.ufl.edu/archives/recmgmt-l.html
Contact [log in to unmask] for assistance