Haynes and Boone, LLP
  October 1, 2005 - Texas

Electronic Discovery: Ten Tips for Outside Counsel Representing Corporate Clients
  by Victor Vital

Imagine you are a seasoned trial lawyer at a large, downtown firm. Following a successful “Beauty Contest” at the New York headquarters of Telco Corporation—a FORTUNE 500 telecommunications company—you are given the opportunity to represent Telco in future commercial disputes. To prepare, you begin to research Telco Corporation so that you are familiar with its management, core business, financials, and other issues potentially affecting future litigation. During your research, you quickly discover that Telco is highly dependent on electronic information. For example, Telco receives up to 300 million external emails a month in addition to the 90 million internal emails that Telco employees send and receive. Telco also uses approximately 121,000 backup tapes each month, but it routinely recycles these tapes according to an internal document retention and destruction policy. On average, Telco stores approximately 800 terabytes of electronic information with each terabyte representing 500 billion typed pages. You quickly do the math and realize that Telco’s electronic information equates to 400 trillion typed pages. Immediately, you begin to sweat. You recognize that successfully navigating electronic discovery will be difficult if you are not proactive in helping Telco establish proper policies and procedures. To do this, you begin by analyzing the U.S. District Court for the Southern District of New York’s decision in Zubulake v. UBS Warburg, L.L.C.and its progeny. In Zubulake, the Southern District of New York delineated several affirmative duties that counsel must uphold with respect to electronic discovery. Zubulake warns that “parties and their counsel are [now] fully on notice of their responsibility to preserve and produce electronically stored information.”With Zubulake’s affirmative duties and warning in mind, you develop the following tips for Telco’s or any other client’s management of electronic information and discovery. Please click on link for remainder of article.


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