'Pension Committee' Clarifies E-Discovery Requirements

In a bombshell opinion and order issued just weeks ago by U.S. Southern District of New York Judge Shira A. Scheindlin, litigants and lawyers have been admonished (again) about their discovery obligations, particularly, to preserve, collect and produce electronic documents, records and data in their possession, custody, or control. Scheindlin, one of the foremost experts on the law of electronic discovery, was the author of the Zubulake line of decisions that many say ushered in a new era of robust electronic discovery. Now, her new blockbuster is the Pension Committee decision,[FOOTNOTE 1] which carries the picturesque title, "'Zubulake' Revisited: Six Years Later." Pension Committee promises to be a guide and oft-cited framework for complying with electronic discovery requirements.

Since the new decision copiously analyzes a series of discovery failures that led to sanctions against numerous plaintiff-companies, it is a practical roadmap on how real people and real attorneys may be confronted by real challenges regarding compliance only to wind up making judgments that come back to haunt them.

Pension Committee also is a kind of "how-to" manual setting forth key principles relating to issuing, monitoring, and enforcing litigation holds, discharging preservation and search techniques, and documenting appropriate behind-the-scenes conduct so that the responding party can withstand accusations of insufficient disclosure by the adversary. Then, too, there is advice regarding sanctions, what needs to be proved and by whom, the criteria of "relevance" and "prejudice," the legal behavior standards of negligence, gross negligence and willfulness, available remedies and, even, the text of an actual spoliation instruction.

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e-DISCOVERY DRIVES LEGAL COSTS UP

As it turns out, companies don’t usually understand the importance of knowledge and document management, until they are legally required to find and hand over all documents. The process of ediscovery is usually complicated by the fact that companies don’t know where their information lives.

Or so says a recent study by the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System.

Turns out, many companies are still not in the habit of retaining and organizing their documents in a logical structure. In fact, it’s so hard to uncover materials related to the legal cases that costs are rising as a result. Out of the 1,400 lawyers surveyed, 87% said that electronic discovery is too costly and driving up the price of litigation.

This is not due to their lack of concern for the nature of the marketplace; it is more from a reactionary model as opposed to a proactive one. In most cases, online documents, emails, policies, procedures don’t often live in a well-laid out, easy-to-find format.

Companies are simply not prepared, when it comes to organizing and storing documents.

The study also says that “without a proactive approach to retaining and organizing their electronic documentation, the company has just grown that litigation cost exponentially”.

Such a proactive approach involves the following:

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  Storage structure: Implement a formal and stringent document control system, so that costs to litigate can be diminished.
• Searchability: Now that information has been organized sufficiently, make it searchable. Often determining your search terms can help with the organization of documents. Create an organized electronic database or a document retention platform with the ability to quickly search for items. Allowing lawyers to perform a detailed search using document criteria, metadata and content simply saves both parties money.
• Retainability: Have a retention policy in place, which immediately executes “save everything”. Once a company has been served, it must retain all documents related to the litigation. When considering an electronic document management system, one that meets your retention criteria is the best.

These proactive initiatives will save you money should legal issues arise. They will also keep you and your company organized and up-to-date on policies and procedures. Good knowledge management has a funny way of keeping out of trouble.

Web 2.0 Collides With E-Discovery

You have received a document request from opposing counsel. Among the various items of calendar entries and e-mails requested is a request for "Any and all social networking or business networking information related to the key player(s)."

This raises questions of what is in scope, where is it, how much is enough, and who is responsible for producing it? Welcome to the collision between Web 2.0 and electronic data discovery.

The Art of Redacting Privileged Data

In the old days, redacting privileged data from a document was simple. I would pull out my black Sharpie, cross out privileged words, and record the redaction on a privilege log. Attorneys produced redacted documents with full confidence that their client's privileged information would remain concealed. In today's age of electronic data discovery, attorneys can no longer retain the same confidence.

In 2005, I first witnessed the severe consequences of failing to understand the mechanics of the EDD production process. Opposing counsel produced hundreds of thousands of e-documents. I loaded these documents into a computer program from Ipro Tech Inc. that helps users view the produced documents as images, and then perform keyword searches.

Electronic Files Are Fair Game in Discovery Phase

Computers and new technology may have simplified and streamlined many aspects of businesses, but electronic documents (in their various forms) have become a potential legal and operational pitfall that could be extremely costly to the uninformed.

That assessment and caution comes from three St. Louis attorneys whose practices concentrate on electronic legal documents, and from a law professor at Saint Louis University. They've all discovered that the phase of litigation known as "discovery" now routinely includes electronic discovery. In fact, it's not only included, it's required automatically.