A lawyer’s Seven Step Program for preserving and producing transitory electronic data

Arista Records, LLC v. USENET.Com, Inc., 2009 WL 185992 (S.D.N.Y. Jan. 26, 2009).

Arista Records is yet another decision where sanctions were imposed, including the issuance of an adverse inference instruction, for the failure to properly preserve and produce electronic information. The case is significant because the decision focused on requests for transitory server log data and information on dynamic web pages.

It would be a gross oversimplification to say Arista Records merely stands for the proposition that sanctions can be imposed when a party disables features of its computer system or reconfigures its servers in a way that results in the loss of electronic data. While that indeed was the court’s ultimate ruling, the Arista Records decision raises a number of important issues. Therefore, we have distilled several of the more important points from Arista Records into what we call our Lawyer’s Seven Step Program for the Preservation and Production of Transitory Electronic Data:

• Step 1: Know what to preserve and when to preserve it.
• Step 2: Communicate with your client.
• Step 3: Bring a motion for a protective order concerning inaccessible sources of information.
• Step 4: Confirm in writing before taking any ediscovery measures.
• Step 5: Exercise extreme caution in what you say or agree to produce.
• Step 6: Use a technologist or expert wisely.
• Step 7: Avoid system changes that can result in the loss of data.

Let’s take a more detailed look at these steps below.
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Learn how to avoid ediscovery sanctions from Cool Hand Luke

Keithley v. The Home Store.com, Inc., 2008 WL 3833384 (N.D.Cal., Aug.12, 2008)

What is the one line from the movie Cool Hand Luke that everyone remembers?

No, it’s not Carl the floor walker’s speech about spending “a night in the box” for various rule violations. And no, it’s not Dragline’s comments about Lucille as she washes a car in front of the chain gang while they are cutting down weeds on the side of a road. It’s the Captain’s infamous line after he knocks Luke to the ground with a billy club: “What we’ve got here is failure to communicate.” And that is today’s tip for avoiding ediscovery sanctions.

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Reducing ediscovery costs, a modern day fairy tale or a road map for the future?

Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D.Md. 2008)

How does a case involving an otherwise pedestrian discovery dispute end up on every e-discovery consultant or blog’s list of top cases for the year?  Mancia is an opinion written by Judge Paul W. Grimm which among other things discusses the report issued by the American College of Trial Lawyers which concludes that our “civil justice system is in need of repair” as well as the Sedona Conference’s recent “Cooperation Proclamation,” that’s how.  For those of you who are unfamiliar with him, Judge Grimm is considered one of the “deep thinkers” when it comes to ediscovery.  He is the author of the Hopson and Victor Stanley decisions, and always seems to be on the leading edge of hot e-discovery issues.  So when he talks, the e-discovery community carefully listens.  That means so should you.

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