| The Zubulake standard | |
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| Tweet Topic Started: Mar 11 2010, 10:01 AM (851 Views) | |
| Quasimodo | Mar 11 2010, 10:01 AM Post #1 |
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http://www.pss-systems.com/news/ComplianceWeek_051115.pdf (snip) The Zubulake case was filed in New York federal court in 2002 by a female equities trader who claimed that she was discriminated against. During the course of the lawsuit, the parties battled over a number of crucial discovery issues—including which side should have to pay for producing email that was contained on computerized backup tapes, and whether the company or the employee should bear the cost of restoring backup tapes. Ultimately, Judge Scheindlin found that the employer willfully deleted relevant emails and, on that basis, allowed jurors to assume that the missing emails would have have been damaging to the employer. In April 2005, the jury ruled in favor of the plaintiff and awarded her more than $29 million, an unusually large sum for an employment discrimination case. In two of the most important rulings issued in the case (referred to as Zubulake IV and Zubulake V), the judge discussed five steps that corporations and their lawyers should take at the outset of litigation to meet their duty to preserve electronic documents: 1. As soon as litigation is reasonably expected, attorneys should issue a litigation hold directing all employees to preserve documents and data that may be relevant to the litigation. 2. Once a hold is issued, corporate lawyers should determine all sources of potentially relevant information and speak with the company’s IT department about its document retention policies, data retention architecture, backup procedures and the recycling policies actually implemented for backup tapes. 3. The lawyers should interview all of the key employees involved in the case to determine how they store electronic data such as emails and evaluate their compliance with company document retention policies and, at the same time, clearly communicate to these employees the litigation hold and their document retention and preservation responsibilities. 4. Employees should be instructed to produce electronic copies of their relevant active files and ensure that all backup data that the company is required to retain is safely stored to avoid the risk that backup tapes will be recycled. 5. The lawyers should take affirmative steps to monitor compliance with the litigation hold and periodically re-issue the hold so that new employees are aware of it and that it remains fresh in the minds of other employees. |
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| Quasimodo | Mar 11 2010, 10:02 AM Post #2 |
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ZUBULAKE CHECKLIST Information retention and preservation specialists PSS Systems in Mountain View, Calif., have published a "Zubulake Checklist." According to the firm, "Judges in many jurisdictions assess companies’ preservation and production effectiveness against this checklist:" 1. Enable your “discovery liaison” to readily describe information custodians, systems, storage, and your retention policies; 2. Affirmatively and repeatedly communicate legal holds to all affected parties; 3. Integrate your retention policies and coordinators with discovery challenges and responsibilities; 4. Actively manage and monitor document collections; 5. Interview affected employees to determine sources of information; 6. Monitor compliance with legal holds on an ongoing basis; 7. Thoroughly document and demonstrate the efficacy of your process; 8. Prepare to take responsibility for ensuring that information is preserved, collected, and produced. |
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| Quasimodo | Mar 11 2010, 10:05 AM Post #3 |
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Considering Durham's past record of losing records and taping over recordings, I thought it might be worth noting what is expected of a reasonable and prudent defendant. I also recall that a stack of printed emails about the lax case, two inches thick (about one ream's worth of paper--500 pages) was handed over to Lt. Russ. I have to wonder what is in those 500 pages... |
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| Quasimodo | Mar 11 2010, 10:07 AM Post #4 |
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http://www.pss-systems.com/news/ComplianceWeek_051115.pdf What the Zubulake case makes clear is that “it’s not enough to just send out a litigation hold at the beginning of the case,” says Manatt’s Reich. “Yes, you still have to do that, but you also have to update it periodically during the course of litigation, which is something different than had been done in the past.” What courts expect in the handling of backup tapes is also new. “Backup tapes have to be taken out of circulation or [companies need] to run a keyword search and then make sure the hits are taken out and saved,” Reich notes. [especially important in Durham...] |
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