The December 1, 2006, amendments to the rules include small additions to Rule 26(f) governing “meet and greet” attorney conferences, and Rule 16(b) governing scheduling conference hearings. These revisions were short and not particularly controversial, and yet e-discovery experts Adam Cohen and David Lender, call them “revolutionary in effect.” Rule 16(b) was simply revised to add a new subsection five stating that the scheduling order may include: “(5) provisions for disclosure or discovery of electronically stored information.” Rule 26(f) was just revised to add a new subject for the attorneys to discuss: “(3) any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.”
Cohen and Lender are the authors of Electronic Discovery: Law and Practice. They add a prediction in the just released 2007 Supplement that these additions to Rule 26(f) and 16(b):
are likely to be revolutionary in their effect – elevating electronic discovery to front and center status in many federal court litigations, and potentially “front loading” and defusing many disputes about electronic discovery.
Electronic Discovery,Section 2.03[D], 2007 Supplement, Aspen Publishers. Cohen and Lender go on to explain that the early discussion requirements mandated in the revisions to these rules will necessarily require lawyers to “acquire a firm grasp in understanding the facts about their clients’ electronic information systems at the outset of litigation.” To support this prediction they point to the Rules Committee Notes to Rule 16(b) that state that it “may” be important for counsel to become familiar with their clients computer systems before the conference.
Most experts on this subject agree with the prediction of Cohen and Lender; indeed, it seems to be the consensus view. This view is also consistent with the duty set out in Zubulake V and other cases discussed at length in the Blog Page shown above as “Zubu Duty.” Zubulake v. UBS, 229 F.R.D. 422 (S.D.N.Y. 2004). Judge Scheindlin in Zubulake V requires outside counsel to make certain that all potentially relevant electronic data are identified and placed “on hold”:
To do this, counsel must become fully familiar with her client’s document retention policies, as well as the client’s data retention architecture. This will invariably involve speaking with information technology personnel, who can explain system-wide backup procedures and the actual (as opposed to theoretical) implementation of the firm’s recycling policy. It will also involve communicating with the “key players” in the litigation, in order to understand how they stored information.
This duty to become fully familiar with your clients’ “data retention architecture” is the so-called “Zubulake Duty” that has so many lawyers concerned. Rightly so, because if your client is a mid to large size corporation, its data retention architecture is probably horrendously complex. Very few of your client’s own IT people are likely to understand the whole thing, much less be able to explain it to you in laymen’s language. Still, if you fail to fulfill the Zubulake duty you could face personal sanctions, as the attorney did in Phoenix Four, Inc. v. Strategic Resources Corp., No. 05-CIV-4837, 2006 WL 1409413; 2006 U.S. Dist. LEXIS 32211 (S.D.N.Y. May 22, 2006). The case is fully discussed in the above Zubu Duty Blog Page, but suffice it to say the court held the attorney responsible for not thinking to ask about hidden partitions in his client’s servers, where, as it turns out, most of the evidence in this case was hiding.
The originator of the Zubulake Duty, Judge Shira Scheindlin, was quoted in this month’s ABA Journal, in the article by Jason Krause, E-Discovery Gets Real, as saying the new amendments to the rules “should make life much easier for attorneys.” This seems like an ironic statement from the originator of the Zubulake duty. She then points out that attorneys must come to the Rule 16(b) and 26(f) conferences prepared to discuss all aspects of e-discovery, and if they do not, “that’s just not accepted by the rules.” According to the ABA Journal she goes on to try to reassure attorneys by stating:
I’d like to put their [attorneys] mind at ease, you don’t have to know everything at the first conference. But you at least have to start to assess the situation.
Based on her past decisions, the stress points here were likley on the words “everything” and “first.”