This Month’s Installment from Cybercontrols

By Scott Roseland

CyberControls has long advised its Attorney clients to track the impact of e-discovery on commercial litigation. The recent e-discovery amendments to the FRCP validate those recommendations. The Federal Rules now require lawyers to participate in e-discovery planning and production at all stages of the case.  In other words, there is no safer harbor in which a technologically challenged lawyer can hide from their duty to deal with the Client’s electronically stored information (ESI).

For instance, FRCP 26(f) specifically requires parties to sit down together before discovery begins in order to agree on a protocol to address issues such as the following:

  • Measures to be taken by the producing party to preserve relevant ESI
  • Requesting party’s preference of format for all ESI to be produced
  • Producing party’s explanation of what ESI is accessible or inaccessible
  • Discuss clawback provisions for inadvertent disclosure of ESI
  • Identify places (computers, voice mail, etc.) where ESI is stored
  • Identify custodians in possession of relevant ESI
  • Disclose commercial client’s document retention policies
  • Disclose commercial client’s back-up systems and routines

Because so much information has to be collected and evaluated before such a meet-and-confer session takes place, Clients must be briefed by their Counsel about the client’s duty to preserve responsive ESI on their computer systems.  Preservation of such information may require forensic imaging of computer hard drives or the taking of other steps to prevent inadvertent spoliation. Attorneys need to be absolutely certain that their recommendations on preservation procedures are technically correct as well as practical and capable of implementation. In the alternative, a claim of spoliation and resulting sanctions may be leveled against the Attorney as well.

Federal Rules now require lawyers to participate in e-discovery planning and production at all stages of a case. There is no longer any place that a technologically challenged lawyer can hide from their duty to deal with their Client’s electronically stored information (ESI).

And state courts are following close behind the Federal model (ed. note see Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information referenced in this post). Hence counsel must become familiar with the operation of a client’s information management systems, including how information is received, stored, and retrieved.

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