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The Burden to Lawyers With the Switch to E-Discovery

The old legal discovery process used to entail many boxes, filled with memos, e-mails, letters, and other documentation hidden with information that may or may not contain a means for finding a party guilty. However, within the last ten years there has been a bigger push and switch to a different medium, that is, “e-discovery.” The e-discovery term encompasses metadata, drafts of documents, and user inputs that was otherwise excluded in the past. While there are economic benefits for switching to the use of e-discovery, issues have also come to rise.

A partner, Steven Bennett, from Jones Day, discusses one problem with information coming in by double and even triple the loads. Reviewing the “extra” documentation means more lawyers need to seek time to review it, firms need to outsource the job to a trusting company, and judges have to seek a way to police that proper information is being provided to opposing parties. (See link at http://www.lawcrossing.com/article/381/E-discovery-The-Source-the-Problem-the-Cure/). Additionally, the concern of giving up protected information increases while handing off digital information by these increased masses. However, an even bigger concern lawyers should be aware of is their crucial role in determining what electronic discovery is saved and available for the other side to review.

The Zubulake Court held that a “duty to preserve” begins at the time litigation is “reasonably anticipated.” Thus, once litigation is reasonably anticipated, a litigation hold should be put in place. A litigation hold is a means of notifying others that litigation may be in the future and therefore, documents/information is to be preserved. The litigation hold “runs first to counsel, who has ‘a duty to advise his client of the type of information potentially relevant to the lawsuit and of the necessity of preventing its destruction.”’ See Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 73 (S.D.N.Y. 1991).  Further, this duty is more complicated because counsel is to communicate with all “key players” about potential information relevant to the lawsuit.

Indeed, Zubulake identified “key players” as “the people identified in a party’s initial disclosure and any subsequent supplementation thereto. Because these ‘key players’ are the ‘[ones] likely to have relevant information,’ it is particularly important that the preservation duty be communicated clearly to them.” These “key players” then have a duty to preserve what a potential litigant “knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request.” See Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004).

With all that being said, making the determination on what to save becomes an important duty of the lawyer as the Civil Rules of Procedure provide that sanctions may be applicable when there is a failure to preserve electronically stored information. See Federal Rule Civil Procedure 37(e). In sum, the issue of preserving and preventing electronically stored information gives the lawyer a more active role and responsibility for when litigation may be anticipated. Thus, keeping up to do on new decisions and being in active communication with your clients is the best way to move forward when dealing with electronically stored information.

-Donielle Robinson