Six years ago, a series of decisions, called the "Zubulake decisions" were handed down by Judge Scheindlin of the Federal Court for the Southern District of New York.  These decisions were, and remain, vitally important to any company that produces or stores electronic records. 

How important are they? 

Well, let me put it this way: in my opinion, no decisions have ever been more important and relevant to what companies can and can not do with electronic documents (in the context of litigation) than the Zubulake decisions. 

That is, until now.

Question: What could be more important, more hard-hitting, and more insightful than the Zubulake decisions? 

Answer: Another opinion, issued this past January, entitled, "Zubulake Revisited: Six Years Later".  (The full case name is Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, and it was authored by Judge Scheindlin, the same judge who write the original Zubulake decisions.)

You can read the case HERE.  While you're downloading the case, let's review some tips about what you should and should NOT do with your company's electronic documents. 

Quick disclaimer: The following tips are based on the Zubulake and Pension decisions, but they are not a substitute for legal advice. 

Tip 1: To destroy or not to destroy? (I say destroy, but only if....) 

I subscribe to the school of thought that says, "if you don't need it, throw it out."  There are many good reasons why a company would (and should) destroy their documents from time to time.  But such destruction should only be done pursuant to a written and strictly enforced document destruction policy.  You read more about that HERE.  Also, if you're involved (or likely to be involved) in litigation, then STOP THE DESTRUCTION and read Tips 2, 3 and 4 below.

Tip 2:  When litigation comes a knockin', stop the destruction and issue a "litigation hold".

If you remember only one thing from this blog entry, remember this: if you are going to be involved in litigation, either as a plaintiff or defendant, then immediately stop destroying your documents, and preserve everything until your attorney tells you otherwise.  This is referred to as a "litigation hold", and it is a crucial first step in the litigation process.  Failure to timely issue a litigation hold could result in severe penalties (such as monetary fines or judgments) against you. 

Tip 3:  Assess your documents and key players, and write everything down.

You can avoid problems later on by figuring out (i) what documents exist, (ii) where they reside, and (iii) who is in the best position to speak about them.  Remember, documents can exist in many places, including flash drives, PDAs, mobile phones and offsite email accounts.  For that reason, your assessment team must include counsel who (hopefully) is well-versed in discovery issues.  Make sure you keep a log of your assessment efforts, just in case anyone down the road tries to accuse you of ignoring your discovery obligations.

Tip 4:  Trust your attorney with the good, the bad and the ugly.  And the mistakes.

Everyone makes mistakes.  If you discover any issues or problems with your e-document preservation or assessment activities, then tell your attorney immediately.  Mistakes can be dealt with, often without hype, fanfare or penalty from the court.  Trust your attorneys with the good, bad and ugly points of your document review and preservation activities.  After all, that's what you're paying them for.

If you have questions about e-discovery or whether your company's document retention / destruction plan adequately protects your company's interests, email me and I'd be happy to send you a copy of my white paper, "Document Destruction Policies:  A Primer."