Migrated from eDJGroupInc.com. Author: Barry Murphy. Published: 2011-11-02 07:26:04Format, images and links may no longer function correctly. That there is a dearth of standardized best practices for eDiscovery is an understatement.  The corporate world is still fairly immature in its approach to information governance and eDiscovery.  Thus, it is refreshing to see the recently published New York State Bar Association’s “Best Practices in eDiscovery in New York State and Federal Courts.” This publication is not necessarily the eDiscovery bible, but it does present some common sense, easy-to-follow guidelines for beginning to get one’s eDiscovery house in order.

One of the nice things about this guide is that it acknowledges the lack of prescription in the Federal Rules of Civil Procedure.  The first sentence of guideline #1 is “The law defining when a pre-litigation duty to preserve ESI arises is not clear.”  At the same time, the guide provides some good advice on how to address triggers of the duty to preserve.  This guides strength is its pragmatism – there is not a discussion of pie-in-the-sky ideals; rather, readers get concise advice.  Companies will still have to make tough decisions in practice, but this guide can help drive those decisions.  Everyone should read the guide, but here are the highlights from my perspective:

  • Good advice on how to handle legal holds.  The third guideline states, “Legal hold notices will vary based on the facts and circumstances but the case law suggests that, in general, they should be in writing, concise and clear, and should include: a description of the subject matter; the date ranges of the ESI to be preserved; a statement that all ESI, regardless of location or storage medium, should be preserved unless other written instructions are given; instructions on how to preserve the ESI and/or whom to contact regarding how ESI is preserved; and the name of a person to contact, if questions arise. Counsel should monitor compliance with the legal hold at regular intervals.”
  • Common sense advice.  Guideline #4 states, “Counsel should endeavor to make the discovery process more cooperative and collaborative.”  Thankfully, the New York State Bar has the courage to write this down.
  • Pragmatic guidance.  The ninth guideline says, “Parties should carefully evaluate how to collect ESI because certain methods of collection may inadvertently alter, damage, or destroy ESI.”  If following these guidelines, companies will now actually create strategic plans for collection.  These collection plans can not only streamline reactive collections, but also inform proactive information governance projects.

This best practice guide is thought-provoking and a must read for any eDicovery professional.  It won’t solve every problem, but does offer some good starting points.  It’s great to see the New York State Bar put this out and eDJ believes that such guides will help to move our market up the maturity curve.


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