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October 31, 2011
NEW YORK STATE BAR ASSOCIATION RELEASES
PRACTITIONER’S GUIDE TO E-DISCOVERY
Guide offers practical, concise advice for lawyers
and judges in managing electronic discovery in state and federal
courts
To help lawyers and judges navigate the burgeoning and challenging
electronic discovery landscape, the New York State Bar Association has
issued guidelines for best practices that offer extensive practical
advice on e-discovery issues in state and federal courts in New
York.
E-discovery is the preparation, preservation, collection, processing,
review, and production of evidence in electronic form -- including
email, texts, social media, the “cloud,” etc. -- in response
to business, regulatory, or legal requirements.
Presented in a clear and concise manner, the new publication,
Guidelines for Best Practices in E-Discovery in New York State and
Federal Courts is available free of charge at www.nysba.org/e-discovery.
State Bar President Vincent E. Doyle III of Buffalo (Connors &
Vilardo LLP), said, “Whether documents are stored on Facebook, in
an iPad, in email, or in the “cloud,” members of the legal
profession must understand their legal responsibilities in preserving,
collecting and producing the electronically stored information. In a
world where e-discovery is fast becoming standard
‘discovery,’ it is imperative that lawyers understand this
emerging area of evidence so we can fulfill our obligations to our
clients and the courts.
“These guidelines provide a clear road map on best practices
and will help practitioners meet their e-discovery obligations. The
State Bar is grateful to the Commercial and Federal Litigation Section
and its chair, David H. Tennant, for spearheading this important
initiative, “ Doyle added.
“As its title suggests, the Guidelines is unique in that it is
the first practitioner-focused compilation of its kind to highlight key
distinctions between e-discovery law and practice in the New York state
and federal court systems,”added Jonathan D. Lupkin, who conceived
of and implemented the Guidelines project during his tenure as chair of
the Commercial and Federal Litigation Section. The Guide recently was
approved by the Executive Committee of the State Bar Association.
Adam Cohen and Connie Boland, co-chairs of the section’s
E-Discovery Committee and two of the Guide’s authors, note that
the topics addressed represent areas of high risk for client and
counsel. “The e-discovery case law demonstrates that much,
if not most, of this risk arises from a lack of awareness and/or failure
to communicate. This Guide aims to improve awareness and foster
communication, with the goal of containing risk,” they added.
To avoid major e-discovery disasters, Cohen and Boland warn lawyers
not to assume anything. For example, lawyers should be aware that
clients may not understand all of their legal obligations with respect
to electronically stored information (ESI). It also is a mistake to
think that the adversary will pay for expensive e-discovery-related
costs or will produce ESI in the form your client needs or
wants.
Each of the guidelines is accompanied by extensive commentary.
Central among them are:
Containing cost of e-discovery: The volume of ESI
involved in preservation and discovery substantially increases the costs
of litigation. Even before litigation commences, clients should be
advised to implement proactive programs, such as document retention
policies, hold and collection procedures, adjustments to information
technology practices, user education and other measures to help control
costs of e-discovery.
Sanctions for spoliation: Establishing a sound
litigation hold process is the best way to avoid a spoliation disaster.
It may also be important in showing good faith if spoliation does occur.
Exposing the inadequacies in an adversary’s process is an
effective way to show the court that the spoliator had no regard for ESI
preservation.
Pre-litigation duty to preserve ESI: Take a
conservative approach. If there is doubt as to whether the duty to
preserve has been triggered, assume that the duty might exist.
What ESI should be preserved: It is often best to be
conservative and preserve broadly. You can always argue about the
appropriate boundaries of discovery later, but if you fail to preserve
ESI and the court decides you should produce it, you will have a serious
problem.
Legal hold notices: Counsel should issue a written
“legal hold” instructing applicable custodians about the
duty to preserve and how it relates to information. The goal here is to
effectively prohibit and monitor preservation efforts.
Be familiar with your client’s information
technology: As soon as litigation is anticipated, counsel
should familiarize themselves with their client’s information
technology, sources of ESI, and other related matters.
Form of production of ESI: Failing to identify the
form of production could have disastrous results. Counsel may require,
for instance, that ESI produced by their adversary should be searchable
in full or with respect to certain categories of information. The ESI
produced by the adversary should be compatible with the requesting
party’s computer system or platform. It is important to ensure
that the form of production demanded does not require your client to
transform native ESI in a way that is unreasonably expensive.
Guidelines for Best Practices is the result of months of
work by members of the Commercial and Federal Litigation Section’s
E-Discovery Committee. The process of preparing the publication involved
extensive input from New York practitioners, judges, and technical and
industry experts. The section is planning a series of CLE events on the
guidelines, as well as regular updates as warranted.
The 77,000-member New York State Bar Association is the largest
voluntary state bar association in the nation. It was founded in
1876.
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