VOLUME 34 / ISSUE 04 / APRIL 2006 LAPA
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impossible to suspend destruction of only the infor-
mation covered by the preservation order. The
issues are particularly challenging for clients with a
substantial number of pending cases being handled
by different outside counsel.
Third, in the author’s experience, Information
Technology departments in even the largest, most
sophisticated businesses are not equipped to store
and search electronic data -- particularly data stored
on backup tapes -- in the manner suggested by the
Zubulake decision. Thus, where such backup tapes
must be restored and searched, clients will be forced
to engage costly outside consultants and vendors to
host the saved data and to run the searches necessary
to find the potentially relevant records.
Counsel will then have the further responsibility of
supervising these outside consultants. These costs
will be borne largely, if not exclusively, by the
producing party. See Zubulake vs. UBS Warburg,
216 F.R.D. 280, 290-91 (Plaintiff ordered to pay
25 percent of the cost of restoring backup tapes,
but refusing to shift any of the cost of review and
production of the restored documents.)
Finally, in cases where the burdens of compliance
on the parties are disproportionate, there is a real risk
that the discovery process will be misused to unduly
burden one side. The disparity in discovery burdens
is heightened when electronic records are involved.
That is because, unlike paper records, electronic
records are not consolidated in a handful of boxes
but can reside in numerous and dispersed locations
(such as on laptops, individual desk-tops, hand-
held devices, servers and storage tapes), including
locations that may well be unknown to the client.
Moreover, electronic records contain massive amounts
of information not remotely relevant to the issues in
the case. The problems are particularly acute with
backup tapes, which typically capture an entire
month's e-mail held by an entire server, not merely
a single user. Electronic records also differ from paper
records in that they are dynamic -- they have
changeable content and even contain data about data,
known as “meta data,” which can reveal when a file
was created, how often it was altered, who has reviewed
it and other information. Indeed, even deleted
computer files, unlike papers discarded in the trash,
are discoverable. Antioch Co. v. Scrapbook Borders
Inc., 210 F.R.D. 645, 652 (D. Minn. 2002).
Despite these practical realities, courts apparently
have now reached the point where clients and counsel
will no longer be given a pass on the inadvertent
destruction of electronic records -- the notion,
presumably, being that in this day and age a claim of
failure to understand the technology sounds like an
excuse along the lines of “the dog ate my homework.”
Courts today expect inside and outside counsel to be
fully versed in their clients' policies and practices
for retaining electronic records and to understand
how to preserve and produce relevant electronic
records in litigation. The bottom line: Counsel and
clients can expect that their conduct in preserving
and producing electronic records will more
frequently become subject to judicial scrutiny and,
inevitably, second guessing.
Do not be disheartened, though. There is some recent
good news. The Standing Committee on Rules of
Practice and Procedure of the U.S. Judicial Conference
has published for comment several amendments to
the Federal Rules of Civil Procedure that would, if
adopted, alleviate some of the burden e-discovery
imposes on clients and counsel. Report of the Civil
Rules Advisory Committee, May 17, 2004, revised
Aug. 3, 2004, “Proposed Amendments to the
Federal Rules of Civil Procedure,” Rule 26, at p. 6
(available at http:// www.kenwithers.com/rulemak-
ing/civilrules/report051704.pdf).
Revised Rule 26(b)(2) would allow a party to withhold
from production “electronically stored information
that the party identifies as not reasonably accessible”
absent agreement or court order. The proposed note
provides the example of data that “may be stored
solely for disaster-recovery purposes,” which is
“expensive and difficult to use for other purposes,”
as data that would not be “reasonably accessible”
(and therefore not required to be produced). The new
rule would provide that a court may order discovery
for good cause, which, according to the note, would
be based on a balance of need and burden using
the factors in Rule 26(b)(2).
A revised Rule 26(b)(5) would allow for the post-
production assertion of attorney-client privilege where
TECHNOLOGY CORNER
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