Legal Holds and Trigger Events

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. 

Corporations Burdened by Preservation Seek Change in Civil Rules

 
LCJ Submits Formal Comment on Preservation
Nov 12, 2010

LCJ submitted a formal comment to the Advisory Committee on Civil Rules regarding problems related to preservation of information in litigation.

LCJ submitted a formal comment to the Advisory Committee on Civil Rules regarding problems related to preservation of information in litigation. The current ad hoc patchwork of preservation obligations created by individual courts is creating burdens on litigants far beyond what anyone would consider reasonable. As detailed in the Comment, the current paradigm involving preservation and spoliation of ESI is undermining the “just, speedy and inexpensive” determination of actions. It has forced litigants to spend millions of dollars to address an unquantifiable risk in computing systems that were not designed for litigation holds. Meaningful rule amendments would supply the guidance necessary to help solve these increasingly serious and costly problems that our members see in everyday litigation. This impressive product was based on an excellent draft from LCJ member John Jablonski with input from a significant number of other corporate and defense counsel who participated on the LCJ Preservation Working Group.