Legal Holds and Trigger Events

Court’s Broad Definition of “Control” Requires That Litigation Hold Include Independent Agents

The definition of “possession, custody, or control” under FRCP 34(a) will be construed broadly and a party is not required to have physical possession of the documents to be in control of them. Therefore, companies that use independent agencies should be conscious of the requirements and provisions they place in agency contracts because they can be inferred to give rise to discovery obligations.  To read ELLBlog's analysis of Haskins v. First American Title Insurance Co., Civil No. 10-5044 (D.N.J. 2012) click here.

This is a Legal Hold – The Law

Great practical tips and critical insights during 90 minute Legal Hold webinar held on January 24, 2013. Participants included John Jablonski, Michael Arkfeld, Josh Gilliland and an in-house attorney from Samsung.  

The webinar can be viewed for a modest fee.  As soon as it is posted, it will be available here.

This is a Legal Hold – The Law

Without question, one of the most egregious mistakes that counsel may make is not properly implementing a legal hold once litigation is reasonably anticipated. Regardless if it is an employment matter, personal injury case, domestic relations matter, business dispute or a class action counsel are required to follow specific court directives when implementing a hold, or otherwise face possible court and ethical sanctions.

Join us for this program on legal holds and learn about recent case law, strategic guidance, recommendations and practice forms for legal professionals, outside and corporate counsel, organizations, and others in preparing for and implementing a “legal hold.” The program’s agenda will include:

• Overview of Legal Hold and Electronic Discovery
• Legal Hold Readiness Plan
• The Preservation Obligation Law
• "Reasonable anticipation" of litigation – how do the Courts interpret “ reasonable anticipation”?
• Triggering events – what are pre-complaint events for both the plaintiff and defendant that trigger a party’s obligation to preserve ESI and should a litigation hold letter be sent?
• Scope of preservation – how does proportionality enter  into the decision regarding what to preserve and who should bear the burden of establishing relevance and prejudice?
• Document Retention Policy – should your policies be enforced if you are anticipating bringing a lawsuit?
• Safe Harbor provision – does FRCP 37(e) and comparable state rules provide protection for the destruction of ESI?
• Legal Hold Court Directives – what are the court directives when implementing a legal hold and how does self-preservation and self-collection fit?
• Legal Hold notices – should they be used and are they discoverable?
• ESI to Preserve – what ESI should be preserved and how is social media affecting data preservation protocols?
• Sanctions - under what circumstances will sanctions issue for failing to preserve ESI?Join us for this ongoing eDiscovery series identifying and offering solutions to eDiscovery Challenges in your practice and organization

This is the first of a three part Webinar series focusing on the law, technological tools and protocol to successfully implement a legal hold.

 

Second Circuit Rejects Pension Committee’s Per Se Gross Negligence Standard for Failure to Issue Written Litigation Hold

For those responsible for issuing litigation holds at their organization the Zubulake and Pension Committee decisions are well known. The duty to issue a litigation hold continues to shape the preservation and spoliation landscape, including giving birth to a cottage industry of written litigation hold software, books, white papers and seminars. Remarkably, as the duty to issue a litigation hold continues to spread across the United States, few appellate courts have addressed the consequences of failing to issue a written litigation hold. Even more remarkable, the Second Circuit has not addressed the duty to issue a litigation hold – until now. (The Second Circuit Court of Appeals is the appellate court that hears appeals from the federal district court where the duty to issue litigation holds was born – the Southern District of New York).  

Much like the Zubulake series of decisions, no one was watching Chin v. The Port Authority, 10-1904 and 10-2031 (2nd Cir. July 10, 2012) as a much anticipated litigation hold or spoliation decision. Fittingly, Chin also involves an employment discrimination case – like Zubulake.  Yet, tucked at the end of its 55 page decision the Second Circuit addresses the question of whether the failure to issue a written litigation hold at the onset of litigation should result in sanctions.  The Second Circuit holds in Chin that the failure to issue a written litigation hold does not equal per se gross negligence.  It further held that the district court did not abuse its discretion by denying the motion for sanctions.  Has the Second Circuit handed spoliators a “get out of jail free” card?  No, but the decision will help the wary litigant that fails to issue a written litigation hold, yet preserves relevant evidence (whether by happenstance or through preservation efforts).

Are Litigation Hold Notices Privileged?

A good article about whether litigation hold notices are privileged when issued by inhouse counsel.  To read the article click on the image or click here.

 

Judge Scheindlin - Written Legal Holds: Just Do It!

LegalHoldPro just posted an unofficial transcript of a panel discussion at the Georgetown Law Center's Advanced E-Discovery Intitute with Judges Scheindlin, Rosenthal, Facciola, Rosenbaum, Nolan and Peck.  The panel was moderated by Ken Withers of the Sedona Conference.  Here is the notable quote about issuing written litigation holds:

...I know that a lot of the world is unhappy with me about this litigation hold issue, but I never understood what the big problem is. Write it up, protect yourself, it’s credible, you can defend it, and still… I’m not going to back off!  I would go all over the country saying, “Why not issue a written litigation hold?”  Spell out for your company what they have to do. Instead of fighting with me about it – just do it. Just do it.  You will have a defensible process and people will have guidance about what they have to hold on to. 

Judge Scheindlin (11-18-10)

Establishing Prejudice: Putting the Brakes on Spoliation Motions

Davis v. Grant Park Nursing Home, LP, 2010 U.S. Dist. LEXIS 118853 at *3 (D.D.C. Nov. 9, 2010) has been on our to-do list, but our good friend The Bow Tie's Blog does a very nice job of discussing the issues raised in this very short opinion by Magistrate Judge Facciola. 

In short, Judge Facciola felt plaintiff's motion for sanctions (due to a failure to preserve evidence) was premature. The motion was dismissed until the full nature of any prejudice realted to the loss can be gleaned from a full record developed during discovery.  As discussed throught our blog, a court must find three things before it can sanction a party for failing to preserve evidence: 1. A duty to preserve, 2. the destruction of relevant data and 3. prejudice caused by the loss.  For a copy of the opinion, click here: Download Davis v Grant Park - 11-9-2010

To read the Bow Tie Law Blog's take on it, click here.