JUDGE SCHEINDLIN’S ‘PENSION COMMITTEE’ CASE DO’S

Do issue written litigation holds. Litigation holds should be in writing and disseminated to the widest of audiences early. For prospective plaintiffs, litigation holds should be issued no later than upon retention of outside counsel. Litigation holds should explicitly instruct employees and potential custodians not to destroy records. Slip Op. at 12, 29, 33, 44, 47, 72.

Do search broadly. Preservation and collection of the records of employees who were key players in the events in dispute is a given. The failure to preserve and obtain records of employees with relatively minor or even redundant roles, however, could also be branded as negligent. Likewise, failure to collect the documents of former employees or those of individuals who may have changed jobs within the company can trigger unwelcome scrutiny. Slip Op. at 10, 49, 53, 58, 67-69.

Do supervise discovery adequately. Individuals well-versed in discovery responsibilities, such as in-house or outside counsel, should seize control of preservation and collection activities. Delegating these duties to an unsupervised, inexperienced assistant or paralegal, or affording employees the discretion to determine what should be maintained and turned over, can be problematic. Slip Op. at 28, 50-54, 65, 77.

Do chronicle discovery efforts contemporaneously. Keeping close track of one’s own discovery efforts — e.g., when preservation was mandated; what has been preserved; which custodians have had their files collected; what has been produced; why ostensible sources of discovery were not tapped — will be invaluably helpful if those efforts are later challenged by the opposition. Being able to pronounce with certainty that those efforts were diligent and thorough should minimize the danger of a discovery skirmish turning into an all-out battle before the court. Slip Op. 30-33, 54-57.

Do assume that oversights will be identified. Multi-front and multi-party suits carry unique concerns, as do actions where discovery is obtained by subpoena from non-parties. Adversaries can often track down the documents that should have appeared, but did not appear, in your production — or at least identify the gaps. Overselling the reliability of your collection and production, as plaintiffs did with glowing affidavits here, will only do permanent damage to your credibility before the court. Slip Op. at 32.

Do monitor and manage discovery, even in the wake of a stay. A discovery stay is not a release from discovery obligations. Discovery stays may be imposed for a variety of reasons, such as pending adjudication of a motion to dismiss implicating the PSLRA, or pending resolution of a related first-filed proceeding. Preservation of electronic or paper documents should not await termination of the stay, or lapse during the stay. Slip Op. at 47.

Do “anticipate and undertake document preservation with the most serious and thorough care, if for no other reason than to avoid the detour of sanctions.” Slip Op. at 25. In addition to facing sanctions, the plaintiffs here were forced to devote months and considerable resources to defending their discovery efforts — time and money that could have been better spent pursuing their claims against the defendants.

Do sweep all forms of ESI. Restricting preservation and collection to email inboxes is insufficient. An appropriately comprehensive discovery plan considers other sources, including central electronic and network files, personal computers on which employees conducted company work, PDAs, and backup tapes (when “such tapes are the sole source of relevant information”). Slip Op. at 43 n.99, 59-60, 70, 73.

via Law.com – E-Discovery Do’s and Don’ts of ‘Pension Committee’.