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.
  1. 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. Note that a written hold isn’t always required as long as you and your client have taken reasonable steps in good faith to preserve the information. In a small case, picking up the phone and having a discussion with a custodian may yield better results than a written notice. This is obviously prohibitive in cases with many custodians. The strongly preferred method, and the most easily defended, is a written hold sent via email. The timing is important as well – the longer you wait after determining a hold is necessary, the stronger the claim of spoliation becomes. The decision about how and when to issue is another fact-based analysis that needs to be done separately for each client or matter.
    1. Whatever method you choose for issuing a legal hold notification, it is crucial to document the steps you take in an auditable form. For example, notes typed into your Outlook calendar immediately after the example phone call are much stronger evidence of reasonableness and good faith than testimony from a deponent who is trying to recreate the process solely from memory. For larger clients and corporations, investing in software that will automate documentation and tracking is a must.
    2. In general, legal holds are considered covered by the attorney-client privilege, though this is stronger protection in some jurisdictions than others. It is best to send holds directly from counsel (internal or external) to custodians of data to preserve the confidentiality. For this reason, you will want to solicit feedback from your custodians about who else may have information about the matter, rather than having them send it to other relevant parties. In addition, direct issuance gives you more control over the process and makes follow-up much easier.

For Tiffany's final post, she will give the final step to ensure that custodians preserve data in a legal hold. She will elaborate on how courts decide to sanction a party who ignores what a custodian does or doesn't preserve, regardless of how "innocent" counsel was in making the decision. She also will discuss the recent changes to Rule 26(b). Do not be that person! You will not want to miss the end of this series.

 

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.


 

Simplifying the Legal Holds Process for Faster Digestion: Part 1

PreparationThis is the first post in a four part series by guest blogger, Tiffany Fox.

As the e-discovery world expands, and parties are looking for technicalities and advantages to further their interests in the process, legal holds (“lit holds”) are coming more and more under the scrutiny of the court. Between producing parties abusing the nebulous language around withholding standards and recipient parties looking to press every advantage and find any possible spoliation claim, the courts have had to chime in with guidance and a bit more clarity on just exactly what a legal hold entails.

The first thing to understand is that the term “legal hold” is often used to refer to multiple steps in a process, rather than a single document or notice.
The Sedona Conference Commentary on Legal Holds sets forth 11 guidelines that in turn expand Sedona Conference principles five and six. I am going to simplify things somewhat, for a faster digestion, but highly recommend that any attorney who may be faced with a decision regarding a legal hold read the Sedona materials carefully, along with current case law. Again, because this is currently a commonly-argued aspect of discovery, the case law is evolving rapidly.

The easiest way to understand the legal hold is to think of it in four stages, each with its own sub-steps. I will be detailing each stage in four separate blog posts. As in litigation, the strategy for legal holds is likely to vary depending on each lawsuit or investigation, but there are common principles that can help build a defensible legal hold in any case.

 

  1. Preparation: The first step in a defensible legal hold is preparation. Don’t wait until you have to make a decision to start figuring out how you’re going to decide. It’s important to understand when a legal hold requirement is triggered, and to have triage capabilities in place in order to quickly and effectively determine what the immediate next steps should be. Spend some time analyzing what kinds of claims or investigations are common for your client or company, and if you can, create a list of trigger events that should always be brought to the attention of counsel to determine if a hold is needed.
    1. Sub-set: Keep in mind that while a complaint or subpoena is certainly always a legal hold trigger, the standard under current case law is much broader: Once a party has reasonable anticipation of litigation (or a government investigation), a duty arises to preserve information that may lead to discoverable data in that case. “Anticipation” is the key word here. While it is going to be fact-specific every time, generally speaking it will fall somewhere between an occurrence that exposes the party to liability (e.g., a fraudulent transaction or an injured medical patient) and formal notice of a legal action (a complaint, CID, subpoena, etc.). What is “reasonably anticipated” is different for every client and different in every situation. But as much as you are able, identifying definite triggers and communicating them to your client’s people in the field will help prepare you to quickly identify and issue holds. Once litigation is “reasonably anticipated,” it’s time to take steps to preserve the relevant documents.

Next week, I will be covering the next stage, which is "identifying the scope of the hold." Stay tuned!

Lessons Learned at the University of Florida Law/EDRM Conference

Post by guest blogger Tiffany Fox


I had the opportunity to attend the inaugural E-Discovery for the Small and Medium Case conference at the Levin College of Law at the University of Florida (UF) in the beginning of April. This was an effort by UF to educate attorneys who may not have had exposure to the world of ESI, typically because their cases don’t involve the large corporations who have been doing e-discovery for years. The purpose of the conference was to identify and explain best techniques in approaching e-discovery in smaller cases (for example, divorce or employment matters), but the net effect was a solid overview of the world of e-discovery.

The in-person moderators for each panel, who also co-chaired the conference, were William Hamilton and George Socha. Hamilton is the director of UF’s e-discovery project, which educates attorneys (through classes at the law school and this conference) and engages in research and development of e-discovery software. Socha is the president of Socha Consulting, but is better known for his role in co-founding the EDRM. Adding to this pedigree, the panels included representatives from a wide range of e-discovery roles, including state judges, attorneys both from law firms and in-house positions, litigation support and e-discovery directors, and representatives from some of the leading service providers.

The day and a half event walked through the basics of the EDRM by presenting a sort of “e-discovery 101.” There were opportunities for participants, both in person and online, to comment and ask questions to flesh out areas of interest or confusion. The first EDRM session was about identification, collection, preservation and processing; and the last was about review and production. This provided a complete journey through the EDRM model.

I was particularly engaged by the initial session, in which the panel covered the issue of e-discovery competency. Most lawyers are quickly realizing that they cannot ignore ESI, whatever the issues in a given suit, and that more and more cases, regardless of size, require some level of e-discovery. However, only a small percentage of attorneys feel they have sufficient knowledge to handle their clients’ issues competently. With the exponential growth of electronic data, this will create a crisis in the courts and a significant increase in the risk of malpractice if we as an industry don’t educate ourselves sufficiently. Conferences such as this one are crucial for already-practicing attorneys.

In addition, law schools must realize that to properly equip students, a thorough understanding of the basics of e-discovery is absolutely necessary. Many schools are already offering some level of introduction to e-discovery, and hopefully that trend will continue to catch on. As more clients become savvy regarding their own use of electronic data, even something as “simple” as social media, they will expect their attorneys to be able to speak about the legal implications of the use of such data.

From a logistics perspective, this was a unique conference: the in-person fee was minimal for 11.5 hours of CLE credit, and people were given a half-price option to participate for the same CLE credit via a webcast. The webcast was almost as interactive as the in-person experience, as the web participants were able to send questions via email, and a designated moderator (retired Judge Ralph Artigliere of the Florida Circuit Court) asked the questions in person, alongside questions from people in the room. The webcast provided a great way for people who were unable to travel to get a better educational experience than we typically see from traditional CLE webcasts.

We also received access to a huge online library of resources compiled by the conference panelists and moderators:

-          Articles about software and processing or review techniques

-          Summaries of the latest e-discovery case law

-          Budgeting tools and legal hold planning checklists

It was an incredibly thorough way to provide attorneys at all levels of e-discovery experience with the tools to educate themselves, and then implement processes to protect their clients when they encounter a case that will require some level of discovery of ESI.

I hope the University of Florida Levin College of Law will offer this conference again. I gained knowledge in areas of e-discovery I haven’t had the opportunity to work in, which I found invaluable to my own career as an e-discovery attorney.

Anyone interested in expanding his or her knowledge of the larger world of e-discovery should consider attending this conference next year, either in person or via the web.