The New York State Bar Association (NYSBA) published their “Best Practices in eDiscovery in New York State and Federal Courts” this week in hopes to influence some sort of standardization in eDiscovery collection and preservation. It is no secret that those involved in eDiscovery, from counsel to vendors, have been searching for a universal document to reference on best practice regarding electronically stored information (ESI) . While NYSBA’s document may not be the end-all solution, many critics have already positively responded to its “common sense, easy-to-follow guidelines for beginning to get one’s eDiscovery house in order.”
Included in the 45-page document are an ESI glossary and fourteen guidelines that, as stated in the introduction, are intended “to provide New York practitioners with practical, concise advice in managing electronic discovery.” However, we feel that practitioners from any state can benefit from reading this document. Here are some of the more salient points:
- Preserve as much ESI as possible. When in doubt on whether to save information or not, be conservative and keep your spectrum broad. The hassle of over-preservation is better than being sanctioned for spoliation.
- Create proactive programs to help contain the cost of eDiscovery. For example, implement document retention policies, hold and collection procedures, and user education.
- Become familiar with your client’s information technology as soon as litigation is anticipated. Counsel should give themselves an in-depth look into their client’s information technology, sources of ESI, etc.
- Prohibit destruction and monitor preservation efforts through written legal hold notices issued by counsel.
- Make sure that the cost and type of production demanded is not unreasonable — transforming native ESI can become pricey.
The “Best Practices” guide gives any eDiscovery professional an attractive, pragmatic guide to refer to for ESI solutions. The New York State Bar Association has also announced a plan to host a series of CLE events on its document’s guidelines – check their website for updates.