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The Zubulake standard
Topic Started: Mar 11 2010, 10:01 AM (851 Views)
Quasimodo

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

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

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

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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