New rules of Electronic
Discovery have important implications for employers
On December 1, 2006, the electronic discovery-related amendments
to the Federal Rules of Civil Procedure went into effect. The pre-cursor
to the amendments was the case of Zubulake v. UBS Warburg, a gender discrimination/
retaliation suit against a former employer. The discovery request asked
for all documents concerning any communication by and between UBS employees
concerning the Plaintiff. While UBS produced approximately 350 pages of
documents, including 100 pages of emails, Zubulake produced 450 pages of
emails herself.
The court found that UBS failed to adhere to its own document retention
policy and ordered UBS to pay the cost for Zubulake to depose certain witnesses
relating to the destruction of evidence. The case put businesses and their
counsel “fully on notice of their responsibility to preserve and produce
electronically stored information.” In other words, businesses cannot
claim to be computer illiterate.
The upshot of this case is the importance of developing and implementing
a reasonable document retention and destruction policy. The policy should
adhere to federal, state and local regulations and documents should be retained
and destroyed in accordance with the policy. There should be a plan to locate
and preserve electronic data on secondary sources such as PDA’s, voice
mail, instant messaging, etc. There should also be a policy regarding the
use of personal cell phones, text messaging, home computers, flash drives,
web pages, etc. for work-related issued.
If litigation is commenced, all purging should be stopped; key players identified
and a “forsenic mirror image” of the computers of key players
made: key personnel should be quickly notified of a litigation hold and
also when the hold is lifted; a meeting between your lawyers and IT personnel
should be held as soon as litigation is initiated.
As technology continues to expand the channels of communication, it is important
to establish a clear policy that meets with the approval of your legal counsel.
(“How the New Rules of Electronic Discovery Affect Your Business”
– A Program by Clay Mingus, Elarbee, Thompson, Sapp & Wilson LLP.) |