Best Practices in Electronic Discovery Production

According to a November 3, 2004 article by Thomas M. Freeman, several steps outlined by Judge Shira A. Scheindlin of the U.S. District Court for the Southern District of New York in Zubulake v. UBS Warburg LLC, 2004 WL 1620866, at *1 (S.D.N.Y, July 20, 2004) are likely to become the standard for "best practices" in electronic discovery.

In Judge Scheindlin's view, it is not sufficient for counsel to simply notify employees that there is a litigation hold and expect that the party will then retain and produce all relevant information. Counsel must take reasonable affirmative steps to accomplish the following:

1. "identify sources of discoverable information";
2. "put in place a litigation hold and make that known to all relevant employees by communicating with them directly";
3. reiterate the litigation hold instructions "regularly" and "monitor compliance so that all sources of discoverable information are identified and retained on a continuing basis"; and
4. "call for employees to produce copies of relevant electronic evidence, and . . . arrange for the segregation and safeguarding of any archival media (e.g., back-up tapes) that the [client] has a duty to preserve."