Zubulake cases and their impact on electronic document retention

by on July 8, 2009 · 0 Comment POSTED IN: HR Info Center

Your counsel needs to know the details of your document retention policy

The courts began to take up these issues because they were finding that in a lot of cases, parties were coming into litigation and they weren’t giving all the information that was related to their electronic document retention.

There were a series of cases in the Southern District of New York that are referred to as the Zubulake cases and they really kind of set out the scope of a party’s duty to preserve electronic evidence during litigation.

The Zubulake opinions set out the responsibilities of counsel that once the duty to preserve information attaches, counsel must identify sources of discoverable information. This usually will entail speaking directly with the key players in the litigation, as well as the client’s information technology personnel.

So, what happened in recent years and this has been followed up with changes to the federal rules and civil procedure is that it’s incumbent upon me as an attorney to become very familiar and have a good working knowledge of my client’s document retention procedures and how they store that information electronically. This is a more daunting task than before. The law is now putting an obligation on me to develop that working knowledge of my client’s electronic document retention systems.

The new federal rules of civil procedures and the gradual change in document retention procedure
The new federal rules of civil procedures, which haven’t quite acted they way we thought that they would. There haven’t been as many changes to document retention procedure. When these changes were first made in December of 2006, we were steeling ourselves for a complete shift in a way that litigation was going to go. We thought that people were going to be sniffing around each other’s computers, diving in and out of hard drives, hiring forensic computer experts to see what they can find.

Typically, it hasn’t increased all that much yet. A few people have tried to press the accelerator on these things but it hasn’t really hit full speed just yet. But nevertheless, the federal rules of civil procedures refers specifically to electronically stored information and require the attorneys to confer about how they want that information produced. And I need to know at the very beginning of the case how it’s kept.

Edited remarks from the Rapid Learning Institute webinar: “Personnel Document Retention: What to Keep, How to Keep it & Why it Matters” by Matthew Gilley Esq.

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