Hold It Right There!: eDiscovery Throwback Thursdays
Here’s our latest blog post in our Throwback Thursdays series where we are revisiting some of the eDiscovery best practice posts we have covered over the years and discuss whether any of those recommended best practices have changed since we originally covered them.
This post was originally published on March 22, 2012, when eDiscovery Daily was just over a year and a half old. Even though the Federal Rules changes of 2015 have made sanctions more difficult to obtain with the “intent to deprive” standard in Rule 37(e) for significant sanctions for spoliation of ESI, failure to issue a litigation hold has been seen in the eyes of some courts as an intentional act, leading to adverse inference instruction sanctions or even dismissal or default judgment of the case. So, implementing a solid litigation hold is as important than ever. Also important is suspending any auto delete programs that are running for key custodians. Seven and a half years ago, those were primarily associated with email auto delete programs, but it now is just as important for text message and other message programs as well, as illustrated by these three recent cases. Enjoy!
When we review key case decisions every year related to eDiscovery, the most case law decisions are almost always those related to sanctions and spoliation issues. Most of the spoliation sanctions were due to untimely or inadequate preservation of the data for litigation. As noted in the historic Zubulake decision, Judge Shira Sheindlin ruled that parties in litigation have an obligation to preserve potentially relevant data as soon as there is a reasonable expectation that data may be relevant to future litigation. However, even if the party reacts in a timely manner to take steps to preserve data through a litigation hold, but executes those steps poorly, data can be lost and sanctions can occur. Here are some best practices for implementing a litigation hold.
The most effective litigation hold plans are created before actual litigation arises and applied consistently across all matters. While cases and jurisdictions vary and there are not many hard and fast rules on implementing litigation holds, there are generally accepted best practices for implementing holds. Implementation of a litigation hold generally includes each of the steps identified below:
Identify Custodians and Suspend Auto-Delete Programs: As we have learned in many cases over the years, it’s important to completely identify all potential custodians and suspend any automatic deletion programs that might result in deletion of data subject to litigation. As noted above, those auto-delete programs extend to more than just email these days, as we have seen several cases (especially lately) involving failure to suspend auto-delete programs for text and other messaging apps.
Custodians can be individuals or non-individual sources such as IT and records management departments. To determine a complete list of custodians, it’s generally best to conduct interviews of people identified as key players for the case, asking them to identify other individuals who are likely to have potentially relevant data in their possession.
Prepare Written Hold Notice: Hold notices should be in writing, and should typically be written in a standard format. They should identify all types of data to be preserved and for what relevant period. Sometimes, hold notices are customized depending on the types of custodians receiving them (e.g., IT department may receive a specific notice to suspend tape destruction or disable auto-deletion of emails).
Distribute Hold Notice: It is important to distribute the notice using a communication mechanism that is reliable and verifiable. Typically, this is via email and litigation hold distribution and tracking mechanisms have become much more common in recent years. Distribution should occur only to the selected and specific individuals likely to have potentially relevant information, usually not company-wide, as not everyone will understand the parameters of the hold. Believe it or not, notices with overly broad distributions have, in some cases, been deemed inadequate by courts.
Track Responses: It is advisable to require recipients of the litigation hold notice to confirm their receipt and understanding of the notice via a method that can be tracked (again, a litigation hold program can help automate this process as it can keep track of those who have acknowledged receipt of the hold notice as well as who hasn’t). These litigation hold distribution and tracking programs have become preferable to any manual programs for tracking read receipt notifications through email.
Next week, we’ll discuss follow up on notices, releasing holds when the obligation to preserve is removed and tracking all holds within an organization. Hasta la vista, baby!
So, what do you think? Do you have a solid “hold” on your hold process? Please share any comments you might have or if you’d like to know more about a particular topic.
Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.