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!

Pilot Program to 'Play Nice' in E-Discovery

As we all know by now, in 2006 the Federal Rules of Civil Procedure were amended to standardize how litigants should deal with their electronically stored information (ESI). Soon thereafter, courts at both the Federal and State levels started putting out their own rules (See Tom Allman's Article and a listing of links to state e-discovery rules.)

In addition to the rules themselves, the various courts are trying to find implementation language and protocols that govern the specifics of what the opposing sides must actually do. One example is the 2007 Administrative Order 174 in the Middle District of Tennessee, which spells out what the judges want to see happen at the meet and confer and during the whole discovery process.

Then in 2008, The Sedona Conference published its Cooperation Proclamation in an attempt to codify the steps that opposing counsel should take on the intricate and expensive matters related to identifying, preserving, collecting, searching, reviewing and producing ESI.

Now the 7th Circuit has taken the next step and announced a Pilot Program to last from October 1, 2009 to May 1, 2010, whereby selected cases will have to follow specific principles of cooperation.

The stated purpose is to assist the courts to, among other things, “promote…the early resolution of disputes regarding the discovery of electronically stored information (“ESI”) without Court intervention.” Basically, the Courts are tired of dealing with the lawyers who don’t play nice on matters of e-discovery.

The proposed standing order contains the following (paraphrased) duties: (1) Attorneys not cooperating will be sanctioned; (2) ESI requests should be proportional to the case; (3) Duty to meet and confer, including discussions on identifying ESI and format of production; (4) Identification of an e-discovery liaison to handle disputes; (5) Creation of appropriate and specific preservation requests; and, interestingly, (6) a friendly reminder that the attorneys should become familiar with ESI prior to filing an appearance in one their courtrooms.

First came ESI and the high cost of e-discovery; then came the rules; now comes cooperation and specific actions to follow … all in an attempt to lower costs, deal with the huge influx of discovery disputes and have lawyers play nice.