Legal Holds and Trigger Events

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.

 

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)

Litigation Hold Round Table Held at ABA TechShow With Patrick Oot and Craig Ball

Here is a great post about the ABA Techshow this past April, 2009.  Verizon lawyer Patrick Ott and e-discovery lawyer and thought leader Craig Ball took litigation hold questions from the audience and invited members of the audience to present specific litigation hold issues to the group for discussion.  The session appears to have been invaluable based on the blog post from ediscoveryinfo.

Some quick highlights:

Patrick Oot explained that Verizon built an internal legal hold solution, mostly because it has programmers on staff and it had simlar notification system in place.

Craig Ball quized the audience about litigation hold headaches.  The chief complaint; lack of complaince and overly broad scope of the materials to be preserved.  Craig then had an insightful comment to close the session:

I consider preservation letters a gift because it gives me insight into the other side’s real intention. If it says “save all the metadata,” then I know they are an ignoramous. But if they are specific in their request, then I know that I have to have my ducks in a row because they know exactly what they’re doing.

To read the original blog post, click here.

Circling the Wagons - How to Implement an Effective Litigation Hold (ACC 2006)

This presenentation to the San Diego Chapter of the Association of Corporate Counsel in 2006 provides a good overview of the technology hurdles facing effective implementation of legal holds.  It also contains a number of case law examples.

To view this presentation click the image or here: http://tiny.cc/CirclingtheWagons.

Seven Steps For An Effective ESI Litigation Hold by John Jablonski - ESIBytes™

Listen to attorney John J. Jablonski, a partner at the law firm Goldberg Segalla, LLP based in Buffalo, New York, discuss the Steps for an Effective Litigation Hold with ESI.  John concentrates his practice on commercial and business litigation, construction litigation, product liability litigation, and railroad litigation. He is a frequent presenter and author on electronic discovery, electronic evidence investigation and preservation, best practices for corporate legal hold guidelines, and implementation of legal holds. He is publishing a book shortly with ARMA International.

This podcast will cover why litigation holds are such a hot topic, what is a litigation hold, when is the trigger event for a litigation hold - including a brief discussion of the Phillip M. Adams, LLC v. Dell, Inc., 2009 WL 910801 (D.Utah March 30, 2009) decision, is there any proportionality considered before a party starts spending money to implement a litigation hold, tips for implementing a defensible litigation hold, data mapping as a litigation hold tool, and some advice on where to look for more information on litigation holds.

Click here to listen:  http://www.esibytes.com/?p=565

Comprehensive Recorded Webinar (2008)

Litigation Hold Best Practices: How to Implement an Effective Workflow Process, is a very comprehensive 1.5 hour seminar originally provided as a CRM accredited course through ARMA International.  The recorded seminar is available here: http://snipr.com/geaxk or click the image.

New 20 Minute Podcast: Legal Hold - Don’t Destroy Those Documents

  

With so many layoffs and corporate restructuring, companies must be very careful not to blow their existing legal holds when employees leave and their work and computers are reassigned to others.  Monica Bay, Editor-In-Chief of Law Technology News welcomes John J. Jablonski, partner with Goldberg Segalla LLP, to discuss how exiting personnel can compromise legal holds. Jablonski is the author of Law Technology News April cover story, E-DISCOVERY: Watch the Door.

Podcast: Play on page | Play in new window | Download

Legal Hold Workshop