A video has recently been posted online of a speech by Judge Scheindlin of Zubulake fame. She gave the keynote address on October 23, 2006, at the annual meeting of ARMA (formerly known as the Association of Records Managers and Administrators). Although it is unlikely to be a hit on YouTube, it is certainly worth watching.
Judge Scheindlin’s speech is on the new rules. She begins with the standard explanation from the commentary on why the new rules were needed:
1. volume of e-records, much more than paper records;
2. e-storage systems are dynamic; created and destroyed automatically;
3. ESI is difficult, but not impossible to delete (you only transfer information from an accessible location to inaccessible location);
4. ESI has to be retrieved, restored and translated before it can even be reviewed.
Judge Scheindlin then talks about the “meet and confer” Rules 26 and 16, pointing out that the revision to Rule 26 requiring the parties to discuss “any issues relating to preserving discoverable information” is the first time the Federal Rules have ever mentioned the word “preservation”.
She then turns to Rule 26(b)(5)(B) on return of privileged materials, pointing out how that the Advisory Committee on the Rules of Evidence has proposed a new Evidence Rule 502. It would provide the procedural rule with much needed teeth by prohibiting a finding of waiver if reasonable precautions to review were taken.
Then Judge Scheindlin goes into Rule 26(b)(2)(B) on inaccessibility, and Rule 37(f) on “safe harbor” destruction. No new comments on either rule, instead she just outlines the text of the rules and commentaries.
You can also download a copy of the full text of her speech.
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