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What does it mean for the legal industry? - Commercial Law League ...

What does it mean for the legal industry? - Commercial Law League ...

E-discovery Lessons

E-discovery Lessons Learned A recent opinion in an e-discovery case has highlighted the importance of careful records management. Is your fi rm taking the proper precautions? By Jonathan Scott Senior managers, in-house counsel and litigators, take note: A new set of e-discovery guidelines emerged earlier this year. Judge Shira Scheindlin, author of the defi nitive electronic discovery opinions in the Zubulake case six years ago, issued another soon-to-be classic opinion in Pension Committee of the Univ. of Montreal Pension Plan, et al., v. Banc of America Securities, LLC, et al. Scheindlin dubbed her decision “Zubulake Revisited: Six Years Later,” and in it, outlined some examples of common mistakes that companies make in regard to records management and e-discovery. Scheindlin enumerates specific conduct that she deems to be per se negligent, or worse. The harsh sanctions that accompany a fi nding of negligence with respect to electronic discovery is a warning to senior managers and in-house counsel that e-discovery can no longer be passed off to the IT department — the process must be closely managed by legal counsel at every step along the way. Technically, the opinion is only applicable to the federal courts in New York, but Scheindlin’s status as a thought leader in the field of electronic discovery guarantees that the examples set out in this case will elicit serious discussions between senior management, legal departments and IT groups throughout the country. The fi rst lesson we can take from the opinion: Fully review and document your litigation hold policy. In the opinion, Scheindlin sanctions a number of plaintiffs for failing to issue a timely, written litigation hold. In some cases, the offending parties did not issue litigation holds until years after the litigation commenced. While a litigation hold issued years after litigation commences is uncommon (in this case, it had to do with a discovery stay), Scheindlin warns that the duty of preservation arises when litigation is reasonably anticipated. Any hold issued after that is untimely — even if a discovery stay is in place. The penalty for a late litigation hold is a fi nding of gross negligence per se, which means the judge instructs the jury to make an adverse inference against the offending party. Adverse inferences are significantly detrimental sanctions as they take arguments away from the offending party. They can, and frequently do, turn the case against a party who would otherwise win on the merits. To avoid such a devastating sanction, companies should take the time now to review their litigation hold policy with experienced counsel. Taking Scheindlin’s opinion as an example, in most cases litigation holds must be issued in advance of the fi ling of a suit. Because of the timeliness requirement, a litigation hold process must allow for swift and comprehensive implementation of the hold as disputes become apparent. Also, the mere issuance of a litigation hold is not enough to avoid devastating e-discovery sanctions. A timely issued hold that does not effectively protect potentially relevant data is meaningless. The bottom line? Companies need to carefully outline litigation hold triggering events — and they should also review the technology used to implement the hold to ensure compliance and make sure that potentially relevant data is being saved. Jonathan Scott is a senior partner at Scott & Scott, LLP, which has offi ces in Dallas and New York. His frequent blogs about business and technology law can be found at www.scottandscottllp.com/.

You can expect results when you talk to leaders T H E R E S O U R C E F O R B A N K R U P T C Y, C O L L E C T I O N A N D D E B T R E C OV E R Y Vol. 25 • Issue No. 2 March/April 2010 IN THIS ISSUE Recent Changes to the Canadian Bankruptcy and Insolvency Laws Fraud Detection in Financial Statements Foreign Collections: Engalnd Leaders Who Make a Difference debt 3 readers are their company’s key decision makers: 82% 74% 89% are involved in the purchasing process and make the final purchasing decisions. are partner/owner/president/chair/CEOs of Debt 3 readers have recommended, specified or approved the purchase of products and services, including: • Computer/office software, e.g. collection, bankruptcy, organizational • Law office automation services • Legal support services, e.g. skip tracers, auctioneers, process server services • Office supplies and equipment • Online information services Source: 2004 Debt 3 Independent Reader Survey For more information on how your company can target this exclusive audience, contact: Renee Aiken Buzogany Associates Phone: (828) 258-9858 Cell: (828) 242-3225 E-mail: renee@buzoganyassociates.com

IN THIS ISSUE - Commercial Law League Of America
IN THIS ISSUE - Commercial Law League Of America
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leading the way - Commercial Law League Of America
leading the way - Commercial Law League Of America
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IN THIS ISSUE - Commercial Law League Of America
IN THIS ISSUE - Commercial Law League Of America
IN THIS ISSUE - Commercial Law League Of America
Media Kit - Commercial Law League Of America
leading the way - Commercial Law League Of America
leading the way - Commercial Law League Of America
leading the way - Commercial Law League Of America
leading the way - Commercial Law League Of America
leading the way - Commercial Law League Of America
leading the way - Commercial Law League Of America
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39068_ CLLA DEBT3 - Commercial Law League Of America
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39068_ CLLA DEBT3 - Commercial Law League Of America
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39068_ CLLA DEBT3 - Commercial Law League Of America
39068_ CLLA DEBT3 - Commercial Law League Of America
39068_ CLLA DEBT3 - Commercial Law League Of America
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