Legal Holds and Trigger Events

7 Steps Presentation at LegalTech NY

 
Authors of the book 7 Steps for Legal Holds of ESI and Other Documents will be discussing the seven steps, trends and the Pension Committee opinion at LegalTech NY on Monday, February 1, 2010 at 4:14 a.m.  To register or learn more about LegalTech, click here.

12 Myths About Legal Holds Examined

A very good discussion of legal holds and common myths surrounding legal holds was recently released by software as a service provider, LegalHoldPro.  The “Signature Paper” is available for free and contains an extensive bibliography of key legal hold cases.  The approach is easy to follow and turns some frequently asked questions/misconceptions into useful discussion points.  A list of the “Myths” is below and the paper is available for free by clicking here.

1. Myth: “A robust legal hold notification is a ‘nice-to-have,’ not a requirement.”
2. Myth: “Asking for custodian acknowledgements puts me at greater risk.”
3. Myth: “Putting an organization on notice of a need to preserve data is good enough to protect a safe harbor.”
4. Myth: “The only way to ensure good faith preservation is to collect everything so a hold is no longer necessary.”
5. Myth: “Legal hold notices are privileged documents and do not need to be produced in court.”
6. Myth: “One must collect data and evidence each time a legal hold notice is sent.”
7. Myth: “Legal holds are for defendants only.”
8. Myth: “Sending the legal hold notice a single time is sufficient.”
9. Myth: “Legal holds aren’t formally part of the Federal Rules of Civil Procedure and are not needed in state courts.”
10. Myth: “The new FRCP rules requiring attorneys to ‘meet and confer’ result in greater certainty regarding what actions are required to preserve data for discovery.”
11. Myth: “The courts are lenient toward spoliation as long as one is acting in good faith.”
12. Myth: “Legal holds are expensive and time consuming to manage.”

Judge Scheindlin of Zubulake Issues "Amended" Comprehensive Legal Hold Opinion

 
The Judge that brought us the now famous Zubulake series of legal hold decisions has weighed in on the state of litigation holds in the United States.  Her latest decision considers facts over a period of time from pre-Zubulake through the present.  In a lengthy and well researched opinion (including 251 footnotes) the Judge carefully analyzes the state of legal hold law in the United States (a footnote suggests the Judge and two law clerks spent over 300 hours researching and writing the opinion).

End Game: Terminating Legal Holds is Easier Said Than Done

End Game: Terminating legal holds is easier said than done, says John Jablonski. But it's also "an essential part of a defensible legal hold business process." Jablonski, a partner with Goldberg Segalla, and co-author of ARMA's new "7 Steps for Legal Holds of ESI and Other Documents," says that "timely release of legal holds can help corporations escape from the legal hold purgatory."

To find out more, check out the January e-discovery showcase in Law Technology News.

- Monica Bay, editor-in-chief, Law Technology News

Spoliation: How to Get Your Case Dismissed

Sharon Nelson and her Ride the Lightening blog reports on a recent blog post discussing Gillett v. Michigan Farm Bureau, Michigan Ct. App., No. 286076 (Dec. 22, 2009).  The case was initially discovered by Sharon at Jason Shinn's "Defending the Digital Workplace" blog.  The case and the original blog post are available by clicking on the links above.

The short answer here is a reminder that plaintiffs have the same obligation to implement a legal hold and preserve evidence as defendants.  We keep a list of such cases and they all follow the same pattern.  Plaintiff resists production of ESI.  Court orders production.  Plaintiff destroys laptop, hard drive or simply turns over his computer with many files conspicuously absent.  Computer forensics are run on plaintiff's computer and viola, system metadata reveals the use of evidence wiping software, a defrag or two and usually some evidence that hundreds if not thousands of files were deleted on or about the time that the court issues an order permitting the inspection of plaintiff's computer.  The excuses vary for the loss of data, but generally amount to feigned ignorance over some computer problem.  There is nothing fake, however, about the ability of computer forensics to trace what was done to the hard drive.  The intentional deletion of data is brought to the court's attention and often plaintiff's case is dismissed.

To read Sharon's take on the dismissal of this plaintiff's case for spoliation, click here.