Legal Holds and Trigger Events

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.

Grasping Legal Holds: What Organizations Need to Know

The cover story of the September/October 2010 issue of the Information Management Journal offers important insights and tips for implementing legal holds. 

Several high-profile decisions make it clear that courts expect organizations to manage legal holds competently and will issue sanctions against those that do not. Taking the steps outlined in this article will ensure your organization is well-prepared.

Preservation Extends To ESI In Your Possession, Custody or Control

"Do I need to preserve records stored with a third party?"  This question is one of the most common legal hold questions.  It is really about the scope of the hold and how far a party's duty to preserve extends.  The short answer is that the duty to preserve extends to ESI and other documents in a party's "possession, custody or control."  In other words, if you were forced to produce the records or face severe sanctions, could you get them?  The legal analysis is a little more detailed, but comes down to a case-by-case examination of whether the preserving party had control.  Absent control, there is no duty to preserve.  But what exactly is control?  We came across a good artlcle at InsideCounsel Magazine, that discusses this very issue.  It appeared June 22, 2009 and is titled "Third Party Thinking The Duty to Preserve, Collect, and Procuce Electronically Stored Information Held by Third Parties ."

All Lawyers Must Be Able to Fashion a Defensible Legal Hold

 
In the May issue of Law Technology News e-discovery expert, Craig Ball, warns lawyers against using boiler plate legal hold forms.  He advocates that fashioning timely, case specific legal holds is an essential skill that all lawyers need to master.  To read Craig's sage advice, click here.

Copier Hard Drives Pose Preservation Problem

A recent series of news articles highlight privacy issues associated with today's modern multifunction copier devices.  Most businesses have them.  The devices are all in one digital copiers, scanners, printers and fax machines.  As pointed out by the Buffalo News, these devices have hard drives that are often forgotten repositories of all sorts of images.  The devices are usually connected to an IT network.  Often dedicated network locations store scanned images or faxes, until they are retrieved by a user.  While we were not able to find a reported case dealing with preservation or spoliation issues, should these locations be added to a checklist of ESI locations for preservation purposes?  The short answer is maybe.  Some background first.

Technology Counsel, Mary Mack of FIOS, Cuts to the Chase on Pension Committee and Rimkus

 
Dueling Opinions: Scheindlin’s Pension Committee vs. Rosenthal’s Rimkus

Originally posted by Mary Mack on March 18th, 2010: 

The new decade has begun with conflicting and complementary opinions from Judge Rosenthal of Texas and Judge Scheindlin of New York. These opinions, penned by United States District Court judges, will frame the behavior and motion practice around federal e-discovery sanctions into the near future.

Before the ink was dry on Judge Scheindlin’s groundbreaking “no written legal hold = gross negligence” opinion in The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al., 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010) (Amended Order), subtitled “Zubulake Revisited: Six Years Later,” Judge Rosenthal, in Rimkus v. Cammarata, 07-cv-00405 (S.D. Tex. Feb. 19, 2010) drew careful lines around the court’s inherent power to sanction, even in the face of bad faith, and introduced the concept of preservation proportionality. Both opinions are available at the end of this article.

Back up Preservation

Law.Com's Legal Hold Series Links

Thank you to www.ediscoveryreadingroom.com for the following kind post and links to all eight parts in the Law.com series authored by contributors to this blog:

Legal Holds: a great series of primers from John Isaza and John Jablonski

A litigation hold is as an affirmative act by an organization to prevent the destruction of documents, including ESI and paper relevant to a lawsuit.   Law.com recently published a series of articles that provide an overview of the steps necessary to implement a legally defensible, written litigation hold and are based on the ”Seven Steps for Legal Holds of ESI and Other Documents” (ARMA International 2009) by John Isaza and John Jablonski.   The seven steps for legal holds are designed to help organizations tackle the seemingly daunting task of implementing written litigation holds.

Here are links to each part of the series:

• Step 1 for Legal Holds: Trigger Events
• Step 2 for Legal Holds: Analyze the Trigger Event
• Step 3 for Legal Holds: Define the Scope
• Step 4 for Legal Holds: Implementation
• Step 5 for Legal Holds: Enforcement
• Step 6 for Legal Holds: Modification
• Step 7 for Legal Holds: Monitor and Remove  
• Oversight: Overseeing the Steps for Legal Holds

We added the link to the Oversight article.  The original post from The E-discovery Reading Room is available here.

Must Have Pension Committee Analysis is a Hit at LegalTech

Contributors to this blog were attending LegalTech (the premier legal technology show put on each year by ALM) in New York City from February 1, 2010 through February 3, 2010.  As readers of this blog know, Judge Scheindlin issued her comprehensive treatise of an opinion in Pension Committee v. Banc of Montreal, Case No. 05-cv-9016 (SDNY Jan. 15, 2010) two weeks before LegalTech.  The opinion is already causing quite a stir in the legal community and will likely be heralded as a landmark opinion for years to come.  

Given the importance of the opinion John Jablonski, author of this blog, numerous articles on legal holds and co-author of 7 Steps for Legal Holds of ESI and Other Documents teamed up with Brad Harris, Director of Legal Products at LegalHoldPro to create a detailed analysis of the Pension Committee opinion.  LegalHoldPro was kind enough to print copies of the analysis and distribute them at LegalTech.  The analysis is titled The Pension Committee Opinion - Judge Scheindlin's Call to Action for Effective Legal Holds and is available for download as a free Signature Paper by clicking on the cover picture below or by clicking here.

The greatest part of having the Signature Paper available at LegalTech was the praise we received from the Legal-Technology Community.  Many influential lawyers, commentators and bloggers went out of their way to thank us for the Signature Paper and its detailed analysis of Judge Scheindlin's 89 page opinion.  Craig Ball, techno-lawyer, special master and monthly contributor to Law Technology News was willing to go on the record saying:

The analysis of Judge Scheindlin’s Pension Committeeopinion is good, clear and useful.  Harris and Jablonski ably summarize the case and suggest ways to apply the ruling to legal hold directives.  It's a fine piece of scholarship.

One of the highlights for me was having the pen from the cover of the Signature Paper presented to me by the LegalHoldPro team as a token of their appreciation for my part in bringing the paper to life so quickly.  If you were not able to pick up a printed copy at LegalTech, you can obtain a .pdf copy of the paper by clicking on the cover picture below.

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.”