Legal Holds and Trigger Events

Reform Principles to Improve U.S. Civil Justice Released

The Final Report on the Joint Project of the American College of Trial Lawyers (ACTL) Task Force on Discovery and the Institute for the Advancement of the American Legal System (IAALS) is the culmination of an 18-month collaboration between the two organizations. This report includes a set of 29 proposed Principles that may one day underpin reform of the civil rules of procedure in both federal and state systems.

One of the major Principles examines the traditional "one size fits all" application of rules to all cases and concludes that this approach no longer works. Instead, flexibility in applying specialized procedures to some cases should be permitted to promote efficient and affordable outcomes. The Final Report represents phase two of the initiative, which began with a national survey of ACTL members, undertaken to identify the sources of spiraling cost and delay in our civil justice system.

One of the Principles examines early assessment and court approval of the scope of litigation holds:

• Promptly after litigation is commenced, the parties should discuss the preservation of electronic documents and attempt to reach agreement about preservation. The parties should discuss the manner in which electronic documents are stored and preserved. If the parties cannot agree, the court should make an order governing electronic discovery as soon as possible. That order should specify which electronic information should be preserved and should address the scope of allowable proportional electronic discovery and the allocation of its cost among the parties.

The litigation hold discussion begins on page 12 through page 14.  The report has a very good discussion of the most pressing issues in civil discovery facing the U.S. Justice System as it copes with the extremely large volume of information that exists at U.S. companies, which in turn has made civil discovery in the U.S. an extremely costly proposition.  Litigation holds and the current tactic of seeking spoliation sanctions for failing to implement a legal hold is a symptom of what is ailing the U.S. justice system.  The report is worth reading.

The release of the Principles will provide the platform for an important nationwide conversation about these crucial issues. Please click here to download a copy of this report.

New Legal Hold Projects

We are working to help update the current Wikipedia resource for the term Legal Hold and have started collecting benchmarking information about the legal hold best practices of organizations of all shapes and sizes.  For more information please see Legal Hold Projects.