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The Zubulake Effect

In our recent paper entitled "Will the Real EDiscovery Please Stand Up: What eDiscovery Really Is and What It Really Means," one of the court cases we refer to is Zubulake vs. USB, which has become a classic example of how NOT to do eDiscovery. Federal judge Shira A. Scheindlin, a foremost eDiscovery judicial thinker, summed up an interesting facet of the case in her opinion.

"Counsel must become fully familiar with her client’s document retention policies, as well as the client’s data retention architecture. This will invariably involve speaking with information technology personnel, who can explain system-wide backup procedures in the actual (as opposed to theoretical) implementation of the firm’s recycling policy. It will also involve communicating with the “key players” in the litigation, in order to understand how they stored information."

Here is how the U.S. District Court in New Jersey states it:

"Prior to a Fed.R.Civ.P. [FRCP] 26(f) conference, counsel shall review with the client the client’s information management systems including computer-based and other digital systems, in order to understand how information is stored and how it can be retrieved … including currently maintained computer files as well as historical, archival, backup and legacy computer files."

And if you are not in New Jersey? Sadly you are not safe, since most district courts and many state courts require attorneys to verify the mode and scope of the eDiscovery process.

So what does this mean to counsel? Two things, depending on if you are in-house or outside counsel. The in-house requirement is not that different than what good legal departments should be doing today -- understanding their company's data and storage infrastructures in order to properly discover electronic information.

But its meaning to outside counsel is harder, because now law firms must understand each and every client's data retention policies and locations when it comes to lawsuits. This takes working closely with client IT.

Eventually this all gets easier. Counsel begins to understand the questions it needs to ask, and IT begins to understand that it must document data retention policies and actions. Frankly these are good things with advantages for the business beyond sheer litigation. But it is painful at first.

All of this is made far, far easier by 1) communicable, documented retention policies on the part of IT, and 2) a level of competence on the attorney's part for understanding what questions to ask, and what documentation to receive. Tools can help with both concerns, but they also take technical competence on the part of the attorneys, and litigation competence on the part of IT. The best solution for gaining this competence in the law firm is to establish positions for eDiscovery experts that understand both the litigation workflow in general and can interpret data retention at specific clients. This is already happening at some large law firms (will Ropes & Gray, Day Pitney, and Littler Mendelson please stand up) and need to happen at more. And fast.

Interested in receiving a copy of "Will the Real eDiscovery Please Stand Up: What eDiscovery Really Is and What It Really Means?" Please contact analyst Christine Taylor at
  • Premiered: 10/17/08
  • Author: Taneja Group


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