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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