1. Must be viable, reasonable and defensible.

2. Does not have to ensure that all information ever created is maintained forever.

3. Should address the creation, storage, identification, backup, retrieval and final destruction of e-documents.

4. Should designate responsible employees for all steps.

5. Must be systematically and consistently employed, not rushed into compliance in light of some upcoming possible event.

6. Must provide that the destruction of documents immediately ceases upon the discovery of a reasonably anticipated litigation event. (governmental investigations, subpoenas, civil litigation, etc).

7. Upon first learning of a litigation event, you must institute a “litigation hold” and promptly inform all responsible persons in your organization to immediately cease destroying documents.

8. Document the steps you take to preserve e-documents.

9. Do not destroy e-documents after a litigation event. Do not think you can outsmart forensic computer experts that will likely be hired by the other side.

10. Once a litigation event is identified, the organization’s legal, information technology and business people should assemble to determine the types of e-documents that are likely to be relevant and begin identifying methods to employ to copy or recover those documents.

As for Zubulake, and its progeny, they explain the damage that a company can suffer by not following reasonable and defensible e-document policies: Zubulake v. UBS Warburg LLC, No. 02 Civ. 1243, 2004 WL 1620866, at *1, 13 (S.D.N.Y. July 20, 2004) (failure to coordinate the retention and recovery of e-documents led to destruction of documents and data and late productions of the information that remained, warranting adverse inference instruction; result--$29 million adverse verdict); Coleman Holdings Inc. v. Morgan Stanley & Co., Inc., No. CA 03-5045 AI, 2005 WL 674885 (Fla. Cir. Ct. Mar. 23, 2005) (failure to coordinate the retention and recovery of e-documents led to 2,500 backup tapes being located after discovery responses had failed to identify such tapes; result --partial default judgment, jury verdict of $1.5 billion in compensatory and punitive damages). There are now many other cases. Don’t let your company become one that suffers from the adverse consequences of bad e-document policies and enforcement.

For a further discussion of e-document policies and recovery of documents in light of a litigation event, please contact Neal A. Jacobs.