Imagine you are a seasoned trial lawyer at a large, downtown firm. Following a successful “Beauty Contest” at the New York headquarters of Telco Corporation—a FORTUNE 500 telecommunications company—you are given the opportunity to represent Telco in future commercial disputes. To prepare, you begin to research Telco Corporation so that you are familiar with its management, core business, financials, and other issues potentially affecting future litigation.

During your research, you quickly discover that Telco is highly dependent on electronic information. For example, Telco receives up to 300 million external emails a month in addition to the 90 million internal emails that Telco employees send and receive. Telco also uses approximately 121,000 backup tapes each month, but it routinely recycles these tapes according to an internal document retention and destruction policy. On average, Telco stores approximately 800 terabytes of electronic information with each terabyte representing 500 billion typed pages. You quickly do the math and realize that Telco’s electronic information equates to 400 trillion typed pages. Immediately, you begin to sweat.

You recognize that successfully navigating electronic discovery will be difficult if you are not proactive in helping Telco establish proper policies and procedures. To do this, you begin by analyzing the U.S. District Court for the Southern District of New York’s decision in Zubulake v. UBS Warburg, L.L.C.[1] and its progeny. In Zubulake, the Southern District of New York delineated several affirmative duties that counsel must uphold with respect to electronic discovery, including the following:

• Duty to issue and periodically re-issue a “litigation hold” notice to employees;

• Duty to communicate directly with “key players” in the litigation to ensure the preservation and production of their documents;

• Duty to monitor ongoing compliance with the “litigation hold” notice;

• Duty to instruct all employees to produce electronic copies of their relevant files; and

• Duty to identify and hold safely all backup material required to be retained.[2]

Zubulake warns that “parties and their counsel are [now] fully on notice of their responsibility to preserve and produce electronically stored information.”[3] With Zubulake’s affirmative duties and warning in mind, you develop the following tips for Telco’s or any other client’s management of electronic information and discovery.

TEN TIPS TO SUCCESSFULLY NAVIGATE ZUBULAKE

1. Formalize Document Retention/Destruction Policies

It is important for companies to formalize their document retention and destruction policies, and all employees should be educated on their responsibilities regarding document retention or destruction. The Judicial Conference Advisory Committee on the Rules of Practice and Procedure has proposed the addition of a safe harbor to Federal Rule of Civil Procedure 37(f).[4] This safe harbor will protect a party from sanctions if electronic information is lost because of the routine, good faith operation of a party’s electronic information system.[5] To receive the protection of this safe harbor, a party must still take “reasonable” steps to preserve the information.[6] Accordingly, in the future, a party’s strict compliance with a well-defined document retention and destruction policy may insulate it from sanctions under Rule 37(f).

2. Become Familiar with Client’s Information Management System

You must be familiar with your client’s information management system and staff as well as its document retention and destruction policy. You should attempt to establish a relationship with the client’s information technology personnel, who will hold the keys to finding and preserving the proverbial needle in a haystack.[7] Accordingly, you must ask the client’s information technology personnel who, what, when, where, and how. For example, who is responsible for managing the client’s relevant electronic information? What type of electronic information can you expect to find? When is the client’s electronic information routinely archived or destroyed? Where and how is the client’s electronic information physically stored and maintained—on workstations, servers, near-line data, off-line storage, or backup tapes? Knowledge of this information will allow you to quickly locate and preserve relevant electronic information with little or no effect on the client’s normal course of business.

3. Anticipate Litigation

The duty to preserve electronic information attaches when litigation is reasonably anticipated.[8] Accordingly, you and your client must not wait until a lawsuit is filed to begin preservation efforts. As soon as litigation is reasonably anticipated, you must immediate begin locating and preserving relevant electronic information.

4. Determine the Relevant Scope

The key issues here are time period, subject matter, and the location(s) of potentially relevant information. You should determine the relevant scope of the preservation by becoming familiar with the factual dispute as well as your client’s electronic information systems and platforms. By defining the scope early, you can target your search to preserve relevant electronic information without adding unnecessary costs to or sanctions against the client.

5. Issue a “Litigation Hold” Memo

As soon as possible after litigation is reasonably anticipated, you should issue a “litigation hold” memo to in-house counsel, the information technology staff, and all employees who may have relevant documents or information.[9] The litigation hold memo should generally identify the legal dispute that may result in litigation. The litigation hold should also specifically describe the electronic information that must be preserved as well as how the information should be maintained and stored. Also, all recipients of the litigation hold should be required to acknowledge their understanding and receipt of the litigation hold memo.

6. Search All Sources of Relevant Information

Large corporate clients, such as Telco, who are heavily dependent on electronic information, face significant costs if they are forced to completely halt their document destruction and retention policies. For example, it would cost Telco approximately $1.9 million per month to purchase new backup tapes if a litigation hold forced Telco to discontinue its policy of recycling the 121,000 backup tapes that it generates monthly.

To avoid halting the client’s entire document retention and destruction policy, you should work with the client’s information technology personnel to search for relevant, “active” electronic information on the client’s system. Having already defined the relevant scope of the preservation, you should broadly search the client’s system for key terms, topics, issues, or players.[10] You should compile and preserve every “hit” obtained from these searches.[11] The preservation of all hits obtained in these searches may allow the client to continue the routine, good faith operation of its document retention and destruction policy. You should also identify other non-centralized sources of electronic information, including the workstations of the “key players” in the litigation.

7. Contact and Meet with Key Players

It is important for you to meet with the key players in the litigation to determine what electronic information they may have.[12] This meeting will assist you in determining the relevant scope of the preservation as well as the key terms, topics, and issues. It also provides an opportunity for you to directly instruct the key players concerning their preservation responsibilities under the litigation hold memo.[13] You should question these key players about their personal document retention and destruction policies with a specific emphasis on how they manage their email.[14] You may also determine whether these key players maintain or store information on their local workstations or on removable disks. Finally, you should take possession of and segregate whatever electronic information or “active files” the employee may have.[15]

8. Segregate and Preserve Relevant Electronic Evidence

When you successfully locate relevant or potentially relevant electronic information, you must take reasonable efforts to segregate and preserve this electronic information. You should designate a member of the client’s information technology staff as the person responsible for segregating and preserving this information.[16] To the extent possible, you may work with the client’s information technology personnel to establish a chain of custody for this electronic information. Segregation is key because Standard 10 of the newly revised ABA Civil Discovery Standards clarifies that the “duty to produce may be, but is not necessarily, coextensive with the duty to preserve.”[17] It is always safer to cast a broad net when attempting to segregate and preserve.

9. Monitor Preservation Procedures

Zubulake’s affirmative duties are continuing.[18] Accordingly, you must continually monitor the preservation efforts to ensure that proper procedures are being followed. The client’s information technology personnel should periodically update you as new electronic information is discovered. Furthermore, as you begin to develop the case or its defenses, you will inevitably learn of new issues, topics, or players. When you do, it is important to run additional searches to ensure that all electronic information is preserved.

10. Periodically Reissue the “Litigation Hold” Memo

Finally, it will be necessary for you to periodically reissue the litigation hold memo to the key players in the litigation.[19] As a continuing duty, you must remind relevant employees of their obligation to segregate and preserve relevant electronic information.

CONCLUSION

Zubulake clearly put all attorneys on notice concerning their affirmative and continuing duties to locate and preserve electronic information. Although these standards seem imposing when representing large corporate clients, like Telco, you can successfully navigate Zubulake by following these recommendations. A proactive approach to electronic discovery will enable you to comply with the evolving standards associated with electronic information.

[1] No. 02 Civ. 1243(SAS), 2004 WL 1620866 (S.D.N.Y. July 20, 2004), at *1.

[2] Id. at *7-10, 14.

[3] Id. at *16.

[4] Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure (Sep. 2005), at http://www.uscourts.gov/rules/Reports/ST09-2005.pdf#page=171

[5] Id.

[6] Karen K. Phillips, Further Thoughts on Preserving Electronic Documents, ALAS LOSS PREVENTION JOURNAL, Summer 2005, at 12-16.

[7] Michael D. Kaminski, Understanding U.S. Electronic Discovery and “Best Practices” Therefore, Foley & Lardner, L.L.P. (Oct. 25, 2005), at 4, available at http://www.foley.com/files/tbl_s31Publications/FileUpload137/2943/Understanding%20U.S.%20Electronic%20Discovery%20and%20Best%20Practices.pdf (discussing GTFM, Inc. v. Wal-Mart Stores, Inc., No. 98 Civ. 7724, 2000 U.S. Dist. LEXIS 3804, at *3 (S.D.N.Y. Mar. 30, 2000)).

[8] Zubulake, 2004 WL 1620866 at *7, 9 (noting that UBS Warburg had a duty to preserve its electronic information as early as April 2001 when Zubulake first filed her EEOC charge).

[9] Id. at *9.

[10] Id. at *8.

[11] Id.

[12] Zubulake, 2004 WL 1620866 at *8; Kaminski, supra note 10, at 10.

[13] Kaminski, supra note 10, at 10.

[14] Id.

[15] Zubulake, 2004 WL 1620866 at *10.

[16] Phillips, supra note 7, at 15; Kaminski, supra note 10, at 11.

[17] Phillips, supra note 7, at 13.

[18] Zubulake, 2004 WL 1620866 at *8-9.

[19] Id. at *9.

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Mr. Brooker is an attorney with the Payne Law Group in Dallas, Texas. Mr. Brooker’s practice focuses on the representation of individuals in aviation, product defect, and general negligence cases as well as the representation of businesses in commercial contingency cases. The views of the author are his alone and do not represent those of Payne Law Group or its clients.

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