August 2004 – Electronic Discovery Law

Public Comment Period Begins for Federal Civil Rules Proposals Addressing Electronic Discovery Issues

Aug 24 2004

On August 10, 2004, the Standing Committee on Rules of Practice and Procedure approved for publication and public comment several proposed amendments to the Federal Civil Rules that specifically address electronic discovery. You may receive a copy of the proposed amendments, and the Committee Notes, in this government .pdf document.

The public now has until February 15, 2005 to comment to the Secretary to the Standing Committee regarding the proposed amendments. In addition, public hearings will be held at various dates prior to the February 15 deadline, allowing comments to be given via public testimony. The earliest the proposed rules may go into effect is December 1, 2006. Read More

Federal Court Issues Opinion On E-Discovery Sanctions and Evidence Preservation

Aug 21 2004

The federal district court for the Southern District of New York has issued another ruling (available here) relating to electronic discovery in the ongoing matter of Zubulake v. UBS Warburg.

The court’s most recent decision, issued October 22, 2003, addresses Zubulake’s motion for sanctions against UBS for its failure to preserve missing backup tapes and deleted emails. See Zubulake v. UBS Warburg, LLC, 2003 WL 22410619 (S.D.N.Y.). Although the court established no definitive guidelines regarding when backup tapes must be preserved, the decision discusses this issue at length, describing both situations where the tapes should be preserved, and situations where they need not be preserved.

After considering UBS’s failure to preserve the missing backup tapes and deleted emails, the court declined to grant an adverse inference instruction against UBS, or to impose on UBS the full cost of restoring certain backup tapes, but did order UBS to bear the plaintiff’s costs of re-deposing certain individuals concerning issues raised either by the destruction of evidence or by any newly-produced emails. Read More

Archive - August 2004