Daily Archives: May 19, 2007

Does Underberg & Kessler follow its own advice?

The key issue in the Article 78 proceed brought by Please Don’t Destroy Geneseo (PDDG) against the Town of Geneseo is the claim of the town’s attorneys at Underberg & Kessler LLC that they can not locate certain correspondence that are referenced in bills they submitted to the town. These communications, mainly between Newman Development and UK Attorney Jim Coniglio, are admitted to be public records that should be subject to disclosure under the New York State Freedom of Information Law, however, the firm says they may have been destroyed.

Ironically, just as the attorneys were preparing their “our dog ate the e-mails” defense, UK published its monthly “Legal Update” for April with a feature story by Partner Paul Nunes on the need for clients to adopt new policies concerning the management of electronic records. In this PR newsletter that is posted on the UK website, Mr. Nunes points out that under new rules adopted in the federal courts, “a jury is permitted to infer that lost electronically stored information would have been unfavorable to your case.”

He goes on to offer a checklist of 9 points to consider when faced with possible litigation that will require the disclosure of electronic information. These include the implementation of a “litigation hold” on the destruction of relevant information, a determination of the reality of system back-ups, and periodic reminders to your staff of their obligation to preserve electronically stored information.

If UK had followed its own advice, perhaps this whole litigation would have been uneccessary. Is this a case of the right hand not knowing what the left is doing?

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