“Ten Commandments” of eDiscovery

My colleague, Steven Teppler, recently spoke at the LegalTech New York trade show on eDiscovery and digital evidence topics.  After attending the show, Steve posted a listserv mail concerning an interesting presentation at the show entitled "The Ten eDiscovery Commandments."  The presenters were U.S. Magistrate Judges Frank Maas and Andrew Peck (both from the Southern District of New York). 

According to Steve, the judges presented the following Ten eDiscovery Commandments:

The first commandment: Thou shalt exhibit competence and avoid pleading technological ignorance.

The second commandment: Thou shalt cooperate and be transparent. 

The third commandment: Thou shalt comply with the “duty to preserve evidence.” 

The fourth commandment: Thou shalt take meet and confer conferences seriously. 

The fifth commandment: Thou shalt educate thyself (and thine outside counsel) as to thine systems and what is and is not feasible.

The sixth commandment: Thou shalt not misrepresent thine systems capabilities or lack thereof. 

The seventh commandment: Thou shalt identify “inaccessible” data sources during discovery. 

The eighth commandment: Thou shalt cooperate with counsel to conduct search terms.

The ninth commandment: Thou shalt remember Rules 1 and 26(g) regarding cost/proportionality.

The tenth commandment: Thou shalt be wary of eDiscovery sanctions if these commandments are ignored (see above 9 commandments).

Each one of these commandments could easily fill an essay unto itself.  Nonetheless, they provide a glimpse of some of the most important eDiscovery issues in judges' minds. 

For more information and discussion on eDiscovery topics, the E-Discovery and Digital Evidence Committee of the American Bar Association Section of Science and Technology Law will be meeting in San Francisco right before the RSA® Conference, on February 27-28, 2010.  The Section's Information Security Committee will be meeting at the same place on the same dates.  If you write to me, I will send you an agenda for one or both meetings.  We hope to see you there. 

Stephen Wu

Partner, Cooke Kobrick & Wu LLP

650-917-8045

www.ckwlaw.com

swu@ckwlaw.com

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