There’s no such thing as passing the buck when it comes to e-discovery. Although attorneys may assume that they can agree with a client to assign e-discovery responsibility, they may soon find that they are wrong, according to Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422 (S.D. N.Y. 2004), which imposed new duties on counsel to actively participate in and supervise the e-discovery process.

Prior to Zubulake, an attorney’s duty to supervise e-discovery was less clear. With the Zubulake decision, the court explained that once a party reasonably anticipates litigation, it must suspend its routine retention and document destruction policy and put a litigation hold in place to ensure the preservation of relevant documents.

E-discovery Lessons

Zubulake, a gender discrimination case, involved some serious e-discovery failures by defendant’s counsel which triggered sanctions. Some employees of the defendant deleted relevant e-mails and other employees failed to produce relevant information. Many discoverable e-mails were not produced to the plaintiff until late in the case.

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The trial court found that the defendant’s counsel committed several e-discovery errors. First, counsel failed to request retained information from one key employee and failed to give the litigation hold instruction to another employee. Second, counsel failed to communicate adequately with an employee about how she maintained her electronic files.

Attorney Responsibilities

Ultimately, the court found that counsel had three specific responsibilities with respect to e-discovery in the case:

1. Oversee

Counsel must oversee compliance with the litigation hold. This includes monitoring the party’s efforts to retain the e-discovery and produce the relevant information. In other words, it is not sufficient to have a “set it and forget it” attitude with respect to litigation holds. Issuing the litigation hold, by itself, is not enough. Counsel needs to be actively involved in ensuring compliance. This obligation also entails becoming fully familiar with the client’s data retention architecture. Counsel may need to interview the client’s information technology personnel to understand the client’s data retention architecture.

2. Communicate

Counsel should communicate with the key players in the suit to determine how the information was stored. This will help counsel in determining the key locations where e-discovery could be located. Some e-discovery may be on active data sources while other important e-discovery could be saved locally or on a person’s home computer.

3. Instruct

Counsel should instruct employees to produce electronic copies of their relevant files and request them to store backup media in a safe place. Taking possession of relevant information helps ensure relevant e-discovery is not inadvertently destroyed.

Responsibility to Manage

In Zubulake, counsel’s e-discovery missteps caused the court to impose an adverse inference instruction on the defendant and to impose costs on the defendant for any depositions that had to take place again. Although the Zubulake decision was issued in the Southern District of New York, numerous courts have adopted Zubulake’s holding—making counsel ever more responsible in managing clients’ e-discovery.

Given the advent of Zubulake and the Federal Rules of Civil Procedure, which require counsel to become familiar with a client’s data architecture as the parties must discuss issues relating to the disclosure of e-discovery, including production format, during the Rule 26(f) conference, ignorance of technology issues is no longer sufficient. The best way counsel can protect his or her client is by becoming very familiar with the e-discovery portion of the case or employing someone who understands the e-discovery rules and technology.

Understanding a client’s data infrastructure, determining how employees store and retain e-discovery, interviewing key employees, and preserving e-discovery are all important functions that must take place in order to protect the client’s case.