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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