Best practices in e-discovery, brought to you by the NY Bar

BVWireIssue #111-3
December 21, 2011

The E-Discovery Committee of the Commercial and Federal Litigation Section of the New York State Bar Association recently issued its “Best Practices in E-Discovery in New York State and Federal Courts.” The report offers 14 “guidelines” for state and federal litigators dealing with electronically stored information (ESI), and includes a helpful glossary and bibliography as well as a brief and straightforward interpretation of current law and recommendations. The 14 guidelines address the following topics:

  • when the duty to preserve arises and what to preserve (guidelines 1 and 2);
  • issuance and content of legal hold notices, requests for production (and objections thereto) and subpoenas (guidelines 3 and 6);
  • counsel’s duty to make the discovery process more cooperative and collaborative (guideline 4);
  • familiarity with a client’s information technology (guideline 5);
  • common ESI issues and practical advice throughout a litigation’s life, including: (a) initial review; (b) search for and collection of ESI; (c) processing of ESI to eliminate duplicates and render it searchable; (d) further culling the ESI to reduce volume; (e) review by counsel; and (f) production (guidelines 7-11);
  • familiarity with ESI costs and cost-shifting burdens (guidelines 12 and 13); and
  • consequences of a failure to preserve relevant ESI (guideline 14).

In sum, this report “succeeds as a . . . helpful primer” for attorneys and analysts on how to “best” navigate the e-discovery landscape, says the latest e-discovery alert by Gibson Dunn attorneys. “The guidelines present an excellent, basic checklist of common e-discovery concepts and issues that arise in state and federal court litigations.”

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