Post Process

Everything to do with E-discovery & ESI

What are attorneys’ responsibilities concerning their clients’ data enterprising?

Posted by rjbiii on September 9, 2007

I have a few passages concerning this very issue:

Existence of electronically stored information. Prior to the Fed. R. Civ. P. 26(f) conference, counsel should become knowledgeable about their clients’ information systems and their operation, including how information is stored and retrieved. In addition, counsel should make a reasonable attempt to review their clients’ electronically stored information to ascertain the contents, including archival, backup, and legacy data (outdated formats or media). U.S. District Courts (Kan.) Guidelines for Discovery of Electronically Stored Information.

In any case in which an issue regarding the discovery of electronically-stored information is raised or is likely to be raised, the court should encourage counsel to become knowledgeable about their client’s information management systems and their operation, including how information is stored and retrieved. Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information, Conference of Chief Judges (Rev. Draft, Sept. 2005).

It is ultimately counsel’s duty to preserve and gather discoverable ESI. Leonard Dutchman, Preserving Data in the Wake of Amended Rule 37(f), http://www.law.com/jsp/legaltechnology/PublArticleFriendlyLT.jsp?id=1160643922347 (last visited October 30, 2006).

Counsel has the duty to properly communicate with its client to ensure that “all sources of relevant information [are] discovered.” Phoenix Four, Inc. v. Strategic Resources Corp., 2006 WL 1409413 (S.D.N.Y 2006) (citing Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004)).

To identify all [potential sources or relevant information], counsel should become fully familiar with its client’s document retention policies, as well as its client’s data retention architecture. Id.

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