Priorities, Practice and the Evolving Legal Model

Chief Judge Joel F. Dubina of the U. S. Court of Appeals for the Eleventh Circuit spoke at the 2013 commencement at the Cumberland School of Law. There, he urged the graduates to “avoid scheduling your life away.” He admonished them that “You make this journey through life only once, and some things can be done only during a certain part of your life. You can’t tell an 18-year-old that at long last you have time and are ready to play with him or her. The time to help a friend in trouble is now, not when it is more convenient.”

In an era when commencement speeches are all too often long on words but short on inspiration, I found Judge Dubina’s thoughts right on the money. It’s a message that attorneys and most professionals need to hear. However, I feel a bit different about this topic than I did a few years ago. I believe that the onerous burden of law firm life that befalls new graduates (those who land jobs – possibly a topic for another day) is not as certain a fate as it once was.

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Simplifying the Legal Holds Process for Faster Digestion: Part 4

Finishing her series on legal holds, Counsel On Call attorney Tiffany Fox gives specifics on how to properly follow up with custodians to ensure legal holds are received, understood and complied with, as well as a summary on the changes to Rule 16(b)(3), 26(f)(3) and 37(e).

Simplifying the Legal Holds Process for Faster Digestion (for review):
 

  1. Preparation: The first step in a defensible legal hold is preparation.
  2. Identifying the Scope of the Hold: The second step is identifying the people who need to receive the hold and what information needs to be preserved.
  3. Issue a Hold Notice: Only after you have spent at least some time identifying custodians should you take the third step of issuing a hold notice.
     

The fourth and final step in a defensible legal hold process is follow up. It’s not sufficient to ask custodians to preserve data and then do nothing to ensure that they do. Courts will sanction a party that turns a blind eye to what a custodian does or doesn’t preserve, regardless of how innocent counsel was in making the decision. As an attorney you have an obligation to take reasonable steps to ensure that legal holds are received, understood and complied with.

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Elegant Legal Work

Today's post is from the President of Counsel On Call, Dennis McKinnie.

I absolutely love reading about successful people and how they got where they are, and I have noticed that the paths are never the same. I always learn something. One of my favorite reads about these varied stories of success (and sometimes failure) is Fast Company. A couple of months ago I was paging through the “most creative people” issue and ran across a very interesting quote from Ruchi Sanchvi, head of operations for Dropbox. In discussing her approach to resolving or “optimizing” logistical problems she stated, “I ask: ‘What’s the goal? What are our constraints? What is the optimal, elegant way to get to that goal within those constraints?’ I break it down in terms of a data funnel: ‘Where in the funnel are we inefficient?’”

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Simplifying the Legal Holds Process for Faster Digestion: Part 3

Continuing her series on simplifying the legal holds process, Counsel On Call Nashville attorney Tiffany Fox identifies the third step, which is issuing a hold notice. After you've preserved the information that may lead to discoverable data and identified the scope of the hold, you must issue a hold notice.

Simplifying the Legal Holds Process for Faster Digestion (continuing the series): 

  1. Preparation: The first step in a defensible legal hold is preparation.
  2. Identifying the Scope of the Hold: The second step is identifying the people who need to receive the hold and what information needs to be preserved.
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Simplifying the Legal Holds Process for Faster Digestion: Part 2

Last week, Counsel On Call attorney Tiffany Fox posted the first blog in her series on legal holds. She discussed the first stage of a legal hold, which is preparation. Tiffany elaborated on the importance of understanding when a legal hold requirement is triggered, and the need for having “triage capabilities” in place in order to determine what immediate next steps should be. You can read her first post here. Continuing with this series, this post discusses the second stage, which is identifying the scope of the hold.

  1. Preparation
  2. Identifying the scope of the hold: This includes the person or people who need to receive  the hold and what information needs to be preserved. Generally you will want to notify persons who have substantive knowledge of the facts of the case, and IT or HR personnel who can help you protect and preserve data.
    • Remember that a custodian of data is not necessarily going to be a witness at trial. You may obtain information from someone who never gets deposed, and you will certainly have custodians preserving information that is never used by either party. In smaller cases with smaller clients, the custodian and counsel together can cull through and identify the documents that need to be held, but in larger cases the safer and less expensive move is to archive email accounts and backup systems containing known relevant information. The balance of the cost of storage versus the man-hours needed to cull through the data needs to be evaluated by counsel and the client to produce the best solution for each situation.
    • Every decision you make about a legal hold, including legal holds you don’t issue, should be documented in writing in a consistent manner and location. Document the why, who, when and what of the hold. The reason for this is actually a helpful presumption for your client: The courts do not expect perfection. They know that in any situation, some information will likely be lost. A party claiming spoliation has the burden of proof, but a paper trail is the best defense. Again, because these decisions are so fact-specific, being able to show contemporaneous evidence of why something was decided a certain way will tend to show good faith.

Next week, I will be covering the third stage, which is “issuing a hold notice.” I will discuss the importance of documenting your steps in an auditable form as well as the best way to send holds.

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