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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.)