PROCEDURES TO PROTECT YOURSELF AND YOUR CLIENT

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1 EDISCOVERY POLICIES AND CHECKLISTS FOR INSIDE AND OUTSIDE COUNSEL PROCEDURES TO PROTECT YOURSELF AND YOUR CLIENT Mike Minton Partner THOMPSON COBURN LLP One US Bank Plaza St. Louis, MO fax Copyright 2008 Thompson Coburn LLP Outside Counsel (a) Your name goes on the response to the Request for Production. 1. Although counsel were not sanctioned in Zubulake, Parties and their counsel are [now] fully on notice of their responsibility to preserve and produce electronically stored information. Zubulake, 229 F.R.D. at 440. (b) Implement a litigation hold Important and urgent. 1. Primacy. Include in form retention agreement. 2. Communicate (at earliest stage) with key players. 3. Ensure safe storage of backup media. 4. Address your plan at the Rule 16 and 26(f) conferences. i. Be prepared to back up claims of burden re: inactive data. ii. Object to holds which require unreasonable analysis of or unreasonable burdens regarding inactive data. iii. Explore how impact of hold on inactive data can be lessened with an appropriate discovery cut-off date. 5. How do the dates of the litigation hold square with your privilege log entries? (c) Issue reminders Instruct key players to preserve ESI and paper documents. (d) Conduct interviews. 1. Identify data sources for Rule 16 disclosures.

2 Inside counsel 2. Identify key players who are custodians of data files. 3. Interview IS designee(s) who will be liaison on ESI and ED issues. i. Data architecture ii. Janitor, back-up, and other innocent systems that result in data loss iii. Locking down custodian file deletion rights iv. Burden analyses v. 30(b)(6) witness candidates 4. Identify any data sources under client s control, though in possession of third party. 5. How do the custodians you have used for relevance/scoping compare with your Rule 16 disclosures? (e) Duty to be skeptical. 1. Outside counsel must independently evaluate the client s data systems, preservation, search, and production under Zubulake. 2. If inside counsel insist on preservation decisions and compliance monitoring, formally advise as to preservation and production obligations. (f) Continuing duty to monitor. 1. Changes in the shape and scope of the litigation can change the shape and scope of the litigation hold. 2. Provide periodic reminders regarding retention obligations, paying note to specific events like plant closings, large layoffs, sale of a division. 3. Monitor client s actual data preservation under the litigation hold. 4. Confirm storage of back up tapes. (a) Strongly consider a written policy specifically addressing ESI issues, particularly the litigation hold. 1. Provides consistency. 2. Demonstrates that ESI policy was not an ad hoc position. 3. Provides for coordination of statements in different jurisdictions

3 4. Enables quick and confident movement. (b) Design a set of uniform practices that will pass muster under the new Federal Rules. 1. Ensure that management and line-level employees understand their obligation to notify the legal department that litigation is likely. 2. When a litigation hold notice will issue. i. How a litigation hold is triggered (criteria for determining). 3. How the litigation hold is executed. i. Spell out the phases and the steps within the phases. ii. Set out specific responsibilities of custodians. iii. Identify managerial responsibilities. iv. Identify Fail safe and other protective mechanisms 4. Understand what you will not be looking at. i. Determine what is typically not reasonably accessible. ii. Ballpark the burden in advance. 5. The recipients and content of the litigation hold notice. i. To whom the litigation hold notice will be sent and who else may be covered. ii. iii. iv. The scope of the litigation relevant issues What must be done and when. Specific steps and where to find help. v. What not to do. vi. vii. viii. Ensure an affirmative response. Follow up. Periodic follow ups for continuing compliance. 6. Determine what other ESI you control. i. In re NTL, Inc. Securities Litigation, Nos. 2 Civ (LAK)(AJP), 7377 (LAK)(AJP), 2007 WL (S.D.N.Y. Jan. 30, 2007)

4 ii. Sarbanes Oxley The lesser burden requirement under Rule 45. i. Bank of America. (c) Create an E-discovery team. 1. Span the ranges of necessary expertise (In house IT department, legal department, HR department, business line managers, vendors). 2. Keep a current written understanding of data systems. i. Data architecture/map. ii. iii. iv. Numbers, types/versions, location of hardware and software, both in use and legacy systems (by period). File naming, saving conventions and locations. Archival and back-up methods, catchment pools, rotation and labeling conventions. v. How key systems function in terms of preservation and production issues. vi. vii. viii. ix. Methods of document classification. Archival/back up cycles. Identify weak points and vulnerabilities in terms of potential deletion, data loss. Procedures for disabling deletion rights. x. Deletion on employees home computers used for work. xi. xii. xiii. Loss of compound documents because links across documents are lost. Link is typically dependent upon specific file path, which may not be preserved when file is moved to another location or system. Create procedure for estimating cost of preservation. Draft a set of discovery objections based on actual systems. 3. Notifications. i. Set of communications to employees regarding litigation holds. ii. Original notice

5 iii. Follow ups and interviews (when case issues, personnel, or systems change). 4. Compliance education and monitoring. i. The only thing worse than no policy is one you didn t follow. ii. Will your policy and procedures be privileged? iii. Creating outreach that fits your corporate culture: smart communication, written certifications. 5. Criteria and methods for scoping searches

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