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Electronic Discovery

eDiscovery Case Law: Two Pages Inadvertently Disclosed Out of Two Million May Still Waive Privilege
 

In Jacob v. Duane Reade, Inc., 11 Civ. 0160 (JMO) (THK), Magistrate Judge Theodore Katz of the US District Court for the Southern District of New York found that a privileged, two-page email that was inadvertently produced did not have to be returned and that the privilege had been waived because the producing party, Duane Reade, had failed to request its return in a timely manner.  According to Defendants' counsel, the ESI production involved the review of over two million documents in less than a month; that review was accomplished with the assistance of an outside vendor and document review team.

The Plaintiffs in this matter are Assistant Store Managers pursuing a collective action for overtime wages, under the Fair Labor Standards Act ("FLSA"), against the Defendant, Duane Reade.  The email that was inadvertently produced (on November 8, 2011 and subsequently used in deposition) related to a meeting among several individuals within Human Resources, including an in-house attorney at Duane Reade (assumed to be Julie Ko). The defendants discovered the inadvertent production on January 17 of this year when Duane Reade’s HR Manager (an attendee at the meeting) was noticed for deposition.  The defendants argued that the email was inadvertently produced because it was neither from nor to an attorney, and only included advice received at a meeting from an in-house attorney, identified in the email only by the first name “Julie.”

With regard to whether the email was privileged, the court examined the email and found that the first half, where Ko received information from business managers and, in her role as legal counsel, gave legal advice on the requirements of the FLSA, was privileged.  However, the second half of the email, consisting of proposals that came out of the meeting, to get the Store Managers and Assistant Store Managers to view and treat the ASM's as managers, contained no legal advice and, therefore, was not privileged.

As to whether the Defendant’s waived attorney-client privilege when inadvertently producing the email, the Court referenced a summary of the law in this subject provided by Judge Shira Scheindlin, as follows:

“Although the federal courts have differed as to the legal consequences of a party's inadvertent disclosure of privileged information, the general consensus in this district is that the disclosing party may demonstrate, in appropriate circumstances, that such production does not constitute a waiver of the privilege or work-product immunity and that it is entitled to the return of the mistakenly produced documents. In determining whether an inadvertent disclosure waives privilege, courts in the Second Circuit have adopted a middle of the road approach. Under this flexible test, courts are called on to balance the following factors: (1) the reasonableness of the precautions to prevent inadvertent disclosure; (2) the time taken to rectify the error; (3) "the scope of the discovery;" (4) the extent of the disclosure; and (5) an over[arching] issue of fairness.”

The Court ruled that the production of the email was inadvertent and that Duane Reade had employed reasonable precautions to prevent inadvertent disclosures (such as drafting lists of attorney names, employing search filters and quality control reviews). However, given the over two month time frame for the Defendants to request return of the email, the Court determined that the privilege was waived because the Defendants did not act “promptly to rectify the disclosure of the privileged email.”

So, what do you think?  Was waiver of privilege fair for this document?  Or should the Defendants have been able to claw it back?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: What Do Investment Bankers Think About the eDiscovery Industry?

We’ve published a few studies and surveys regarding the state of the eDiscovery industry, including this one from last week and this one from last fall.  Another industry review was published just last month by VRA Partners, an investment banking firm based in Atlanta, GA.

After a brief summary, the industry review, available here, begins with a brief overview of the eDiscovery process (at least Identification through Production) for newbies to eDiscovery.  The next section discusses market size and growth, citing numbers from the Socha-Gelbmann surveys and also from eDG Journal.  If you haven’t seen these numbers published previously, they’re rather eye-opening, including:

  • The eDiscovery industry is currently anywhere from $3 billion to $5 billion, based on numbers from Socha Consulting and eDG Journal.
  • The eDiscovery industry grew at a Compound Annual Growth Rate (CAGR) of 56.3% from 2002 to 2008 and a 34.4% CAGR from 2002 to 2010 (based on information from the 2009 and 2010 Socha-Gelbmann Surveys).
  • The EDD market has increased more than ten-fold since 2002 from $0.3 billion to $3.2 billion in 2010.
  • As of 2009, the worldwide legal market was $546.8 billion, 47.6% of which is accounted for within the USA.
  • US legal spend grew at a CAGR of 4.1% from 1998 to 2011, from $166 billion to $281 billion.

Reasons given for the continued growth of the eDiscovery market included resistance to recession in the legal market, increased adoption of eDiscovery (partially through required compliance with the Federal Rules changes adopted in December 2006), increased regulation and the part that EDD plays in that process and dramatic growth of electronic data in the world.  With regard to data growth, the review quotes a 57.6% CAGR (from IDC) from 2006 to 2010.  An even more eye-opening figure (not in the study, but also from IDC) is that since 2002, data in the world has grown from 5 exabytes to 1,800 exabytes (or approximately 1.8 zettabytes) – a 36,000% increase in nine years!  It is currently accepted that data in the world is doubling every 1.5 to 2 years.

The review then proceeds to discuss some of the current industry trends, including an increased focus on managing costs, growing focus of corporations to manage eDiscovery more closely (instead of delegating to the law firms) and new technologies (such as clustering and predictive coding).  Other trends noted include an increased sophistication of customers, a focus on process improvement by efficient providers for improved economics and the growth of eDiscovery outsourcing.

The review also includes a look at the market from a provider standpoint, breaking the 600 providers into two halves: the top 30 which comprise a little over 50% of the total market, with the rest comprised of smaller regional and local providers.  It finishes with a look at Mergers & Acquisitions (M&A) and Capital Markets Activity, including a one-page summary of the recent acquisitions in the industry (more than you might think or remember, I bet there’s at least one that most of you didn’t know about).

It’s an interesting perspective from an interesting source.

So, what do you think?  Are you surprised by any of the numbers or the recent acquisitions?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: Delaware Has a New Standard for eDiscovery
 

On Dec. 8 of last year, the U.S. District Court for the District of Delaware revised the "Default Standard for Discovery, Including Discovery of Electronically Stored Information (ESI)" for the third time to reflect recent changes in technology and to address concerns of attorneys regarding the discovery of ESI.  The new Default Standard expects the parties to reach agreements cooperatively on how to conduct discovery under Fed. R. Civ. P. 26-36. If the parties are unable to agree on the parameters and/or timing of discovery, the default standards will apply until further order of the Court or the parties reach agreement (which is why it’s a default standard).

The Revised Default Standard addresses several provisions for conducting discovery of ESI, including:

  • Proportionality: Parties are expected to preserve, identify and produce relevant information in a proportional manner.
  • Preservation: Each party’s normal policies and procedures in place for the preservation and backup of information will not be altered unless the party requesting the information provides good cause and that information current when the request is made must be preserved by the producing party. The preservation requirement doesn’t extend to data only discoverable by forensics, voice mails, information stored on mobile devices, RAM, and data from obsolete systems.
  • Privilege: The parties are expected to confer on the nature and scope of privilege logs for the case, including whether categories of information may be excluded from any logging requirements and whether alternatives to document-by-document logs can be exchanged.
  • Initial Discovery Conference: The new Default Standard provides guidelines for the timing (before the "Rule 16 Conference”) and content (issues, sources of potentially relevant ESI, production formats, handling of privileged information, categories of ESI to preserve, etc.) of the Initial Discovery Conference.
  • Initial Disclosures: Within 30 days after the Rule 16 Conference, each party is required to disclose a ranked list of the 10 custodians most likely to have discoverable information in their possession, a ranked list of the non-custodial data sources that are most likely to contain non-duplicative discoverable information and any issues related to ESI, third-party discovery under Fed. R. Civ. P. 45 and production of information subject to privacy protections.
  • Patent Litigation Discovery Requirements: The timing, starting within 30 days after the Rule 16 Conference, for the plaintiff and defendant obligations are detailed.  In patent litigation proceedings, discovery is limited to 6 years before the complaint unless the information in question relates to the conception of the invention in question.
  • On-Site Inspection of Electronic Media:  Not permitted without good cause.
  • Search Methodology: Producing parties must disclose their search terms to the requesting party and the requesting party may request no more than ten additional terms which must not be overbroad (e.g., product and company names).
  • Format: ESI and non-ESI should be produced to the requesting party as text searchable image files (e.g., PDF or TIFF) unless they are not easily converted to image files (e.g., Excel and Access files).
  • Metadata Fields: The only fields required to be produced (if available) are – Custodian, File Path, Email Subject, Conversation Index, From, To, CC, BCC, Date Sent, Time Sent, Date Received, Time Received, Filename, Author, Date Created, Date Modified, MD5 Hash, File Size, File Extension, Control Number Begin, Control Number End, Attachment Range, Attachment Begin, and Attachment End (or the equivalent thereof).

So, what do you think?  How do these standards compare to those in your state?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: Google “Vaults” Into eDiscovery Preservation
 

Yesterday, Google announced the launch of an eDiscovery tool named Vault for its Google Apps business customers.  Google Apps Vault is an add-on which preserves electronically stored information (ESI), including Gmail, chats and other correspondence to help users meet preservation obligations for litigation, regulation and compliance laws.

Jack Halprin, Head of eDiscovery at Google posted the following to the Google blog yesterday:

“Today we’re announcing the availability of Google Apps Vault (Vault) for Google Apps for Business customers. Vault is an easy-to-use and cost-effective solution for managing information critical to your business and preserving important data. It can reduce the costs of litigation, regulatory investigation and compliance actions.

Businesses of all sizes need to be prepared for the unexpected. In today’s environment, using Vault to manage, archive and preserve your data can help protect your business. Litigation costs can really take a toll on a business when minor lawsuits can run up to many thousands of dollars, and larger lawsuits can cost even more. Significant litigation costs come from having to search and find relevant data, which is also known as electronic discovery (eDiscovery).

E-discovery can be part of virtually any litigation and requires you to search, find and preserve your electronic information such as email. Vault helps protect your business with easy-to-use search so you can quickly find and preserve data to respond to unexpected customer claims, lawsuits or investigations. With an instant-on functionality and availability of your data a few clicks away, Vault provides access to all of your Gmail and on-the-record chats and can provide significant savings to your business over the traditional costs of litigation and eDiscovery.

Additionally, Vault gives Google Apps customers the extended management and information governance capabilities to proactively archive, retain and preserve Gmail and on-the-record chats. With the ability to search and manage data based on terms, dates, senders, recipients and labels, Vault helps you find the information you need, when you need it. Vault gives management, IT, legal and compliance users a systemized, repeatable and defensible platform that will reduce the costs and risks of doing business. With just a few clicks, the business can access a service designed for security and providing auditable access to critical information.

Vault is built on the same modern, 100% web-based architecture as Google Apps. Unlike traditional solutions, it does not require a complex and costly IT environment, and can be deployed in a matter of minutes. Vault brings the security, ease-of-use and reliability of Google Apps to information governance. It can help meet the sophisticated requirements of large organizations and makes these advanced capabilities available to business of all sizes.”

Vault is available to Google Apps customers for $5 per user per month.

So, what do you think?  Do you think that Google has the financial resources to make a splash with Vault?  Just kidding.  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: Three Years Later, “Deleted” Facebook Photos Still Online
 

So, that’s why they call it “Facebook”.  Because the “faces” never leave!  Ba-dum-bah!  Hey, I’m in town all week!

Thanks to the Technologist for this article, by way of Ars Technica.  If you have deleted any of your photos from Facebook in the past three years, you may be surprised to find that they are probably still on the company’s servers.

Facebook is still trying to provide timely deletion of photos from its servers nearly three years after Ars Technica first raised the issue. Admitting that its older systems for storing uploaded content "did not always delete images from content delivery networks in a reasonable period of time even though they were immediately removed from the site," Facebook recently stated that it's currently completing a newer system that will effectively delete photos within 45 days of the removal request. Until then, photos that users thought they "deleted" from the social network months or even years ago remain accessible via direct link.

Facebook has addressed this issue in its Statement of Rights and Responsibilities, as follows: “when you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).”

Not available to others unless they know the direct link to that content, apparently.

As author (from Ars Technica) Jacqui Cheng notes, “There were plenty of stories in between as well, and panicked Facebook users continue to e-mail me, asking if we have heard of any new way to ensure that their deleted photos are, well, deleted. For example, one reader linked me to a photo that a friend of his had posted of his toddler crawling naked on the lawn. He asked his friend to take it down for obvious reasons, and so the friend did—in May of 2008. As of this writing in 2012, I have personally confirmed that the photo is still online, as are several others that readers linked me to that were deleted at various points in 2009 and 2010.”  However, she noted that Facebook did delete her pictures after she did a story in 2010.

Needless to say, as discovery requests for Facebook content continue to increase (such as cases here, here, here, here and here illustrate), this could be discoverable ESI as long as that information is out there.  For attorneys that are contemplating requesting data from Facebook, it may be important to familiarize themselves with Facebook’s Law Enforcement page on how to request that information.  Apparently, just because the opposing party can no longer access that information doesn’t mean it’s not still available.

So, what do you think?  Are you surprised at how Facebook has been handling deletions?  Are you worried that some of your deleted data might still be out there?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: One Third of Surveyed Attorneys Plans to Increase eDiscovery Spending
 

A new survey from Robert Half Legal eDiscovery Services finds that spending by organizations on electronic discovery-related services grew in 2011 and should continue to increase through 2013.  According to the survey of 350 attorneys in large law firms and corporations in the US and Canada, 23 percent of attorneys surveyed said their law firms and corporate legal departments increased eDiscovery expenditures in the last year, with 71 percent indicating that spending remained the same and just 2 percent indicating that they reduced spending.  For 2012 and 2013, nearly one-third (33 percent) of attorneys expected to increase spending on eDiscovery, while 56 percent expect no change in spending and 4 percent expect to decrease eDiscovery spending.

Other interesting findings from the survey include:

  • 27 percent of attorneys surveyed indicated that they don’t currently have a standard operating procedure in place in the event they receive an unexpected request for discovery;
  • 15 percent of survey participants are “not at all confident” that their organization has an eDiscovery plan in place to respond to a request for cloud-based information in response to a regulatory request or litigation;
  • 22 percent of attorneys surveyed are “not at all confident” that their organization has an eDiscovery plan in place to respond to a request for information from social media sites in response to a regulatory request or litigation;
  • Survey respondents indicated that their organization has received an average of 16 external requests for electronically stored information (ESI) in the last three years;
  • 12 percent of attorneys surveyed stated that issues or problems with collecting or reviewing ESI negatively affected a case or ruling for their law firm or company in the last three years;
  • 22 percent of responding corporate lawyers said their organization increased its handling of eDiscovery projects in house within the last year.

This study, and the IBISWorld study from last fall, point to continued growth in eDiscovery activities and spending.  It seems apparent that, as data within the world continues to double every 1.5 to 2 years, many law firms and corporations are having to “ramp up” to meet their eDiscovery obligations.

So, what do you think?  Do these results surprise you?  If so, are they higher or lower than you expected?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: Da Silva Moore Plaintiffs Question Predictive Coding Proposal, Judge Peck’s Activities
 

A few weeks ago, in Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012), Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York issued an opinion making it likely the first case to accept the use of computer-assisted review of electronically stored information (“ESI”) for this case.  However, on March 13, District Court Judge Andrew L. Carter, Jr. granted plaintiffs’ request to submit additional briefing on their February 22 objections to the ruling.  In that briefing (filed last Monday, March 26), the plaintiffs claimed that the protocol approved for predictive coding “risks failing to capture a staggering 65% of the relevant documents in this case” and questioned Judge Peck’s relationship with defense counsel and with the selected vendor for the case, Recommind.

While the plaintiffs noted that “the use of predictive coding may be appropriate under certain circumstances”, they made several contentions in their brief, including the following:

  • That the protocol approved for predictive coding “was adopted virtually wholesale from Defendant MSLGroup”;
  • That “Judge Peck authored an article and made no fewer than six public appearances espousing the use of predictive coding” during “the ten months between the filing of the Amended Complaint and the February 24 written opinion”;
  • That Judge Peck appeared on several of these panels (three alone with Ralph Losey, Jackson Lewis’ ediscovery counsel in this case (and a previous thought leader on this blog) who the plaintiff refers to as “another outspoken predictive coding advocate whom Judge Peck ‘know[s] very well’”;
  • That “defense counsel Losey and Judge Peck cited each other’s positions on predictive coding with approval in their respective articles, which came out just four months before Judge Peck issued his ESI opinion”;
  • That, to promote its predictive coding technology, “Recommind is a frequent sponsor of the e-discovery panels on which Judge Peck and Defense counsel Losey sit” and “Judge Peck’s February 24 e-discovery ruling is expected to be a boon not only to the predictive coding industry, but also to Recommind’s bottom line”;
  • That, with regard to the defendants’ proposed protocol, “Judge Peck failed to hold an evidentiary hearing or obtain expert testimony as to its reliability and accuracy”; and
  • That, “in the same preliminary study MSL relies on to tout the quality of the technology to be used in its predictive coding protocol, the technology’s “recall,” was very low, on average 35%”, so the defendants’ proposed protocol “risks failing to capture up to 65% of the documents material to Plaintiffs’ case”.

In a declaration supplementing the plaintiffs’ filing, Paul J. Neale, chief executive officer at DOAR Litigation Consulting and the plaintiffs’ eDiscovery consultant, contended that Judge Peck approved a predictive coding process that “does not include a scientifically supported method for validating the results”. He also contended in the declaration that Peck relied on “misstatements” by two Recommind employees (Eric Seggebruch and Jan Puzicha) that misrepresent the effectiveness and accuracy of the Recommind predictive coding process and also noted that Recommind did not perform as well at the 2011 Text Retrieval Conference (TREC) as its marketing materials and experts assert.

Now, the ball is back in Judge Carter’s court.  Will he hold an evidentiary hearing on the eDiscovery issues raised by the plaintiff?  Will he direct Judge Peck to do so?  It will be interesting to see what happens next?

So, what do you think?  Do the plaintiff’s objections have merit?  Will Judge Carter give the defendants a chance to respond?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Best Practices: Issuing the Hold is Just the Beginning

Yesterday, we discussed identifying custodians, preparing a written litigation hold, issuing the hold and tracking responses.  Today, we’ll discuss interviewing hold notice recipients, follow up on notices, releasing holds when the obligation to preserve is removed and tracking all holds within an organization.  Here are the rest of the best practices for implementing a litigation hold.

Interviewing Hold Notice Recipients: Depending on the case, follow-up interviews (with at least the key custodians) are generally accepted as a best practice and may be necessary to ensure defensibility of the notice.  The point of these interviews is to repeat the duty to preserve, provide a detailed explanation of the requirements of the hold, answer the recipient’s questions (if any), and confirm that the recipient understands and agrees to adhere to the notice. You should keep written records of each of these interviews and document the reasoning for determining which individuals to interview.

Follow-Up on Hold Notices: For a litigation hold plan to be successful and defensible, it needs to include periodic follow-up reminders to recipients of the notices to inform them that the data in question remains under hold until the case concludes. Follow-up reminders could simply be a retransmission of the original notice or they could be a summary of all of the notices the individual has received, if there are multiple cases with holds for that individual. There is no specific requirement on how often the reminders should be sent, but it’s best to send them at least quarterly.  For some cases, it may be necessary to send them monthly.

Release the Hold: Not to be confused with “release the hounds”, it is just as important to inform people when the duty to preserve the data expires (typically, when the case is completed) as it is to notify them when the duty to preserve begins.  Releasing the hold is key to ensure that information doesn’t continue to be preserved outside of the organization’s document retention policies – if it is, it may then become subject to litigation holds in other litigations unnecessarily.  Releasing the hold also helps keep custodians from being overwhelmed with multiple retention notices, which could cause them to take the notices less seriously.  However, the release notification should be clear with regard to the fact that data subject to hold in another matter should continue to be preserved to meet discovery obligations in that matter.

Hold Tracking System: It’s important to have a reliable “system” for tracking litigation holds across all matters within the organization. Depending on your needs, that could be a customized application or a simple database or spreadsheet to track the information.  You should keep historical tracking data even for completed matters as that information can be useful in guiding hold issuance on new matters (by helping to identify the correct custodians for new matters that are factually similar or related to current closed or open matters).  At a minimum, a tracking system should:

  • Track responses from individual custodians and identify those who have not yet responded,
  • Track periodic reminder notices and release notices,
  • Provide ability to report a list of people with a duty to preserve for a specific matter as well as all matters for which a person is under retention.

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.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Best Practices: Hold It Right There!
 

When we reviewed key case decisions from last year related to eDiscovery, the most case law decisions were 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 Zubulake, 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: As we learned in Voom HD Holdings v. EchoStar Satellite LLC, 600292/08, It’s important to completely identify all potential custodians and suspend any automatic deletion policies that might result in deletion of data subject to litigation.  In this case, EchoStar put a litigation hold in place, instructing employees to save anything that they deemed potentially relevant to the litigation, but did not extend this hold to stopping automatic deletion of eMails from EchoStar's computers until four months later in June 2008.  As a result of their untimely and incomplete hold, EchoStar was given an adverse inference sanction (their second one!).

Custodians can be individuals or non-custodial (i.e., not held by a specific 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. It’s rare to use paper notices anymore as they are more difficult to track. 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.  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.  Receipt and read notifications or voting buttons in emails could be used for this purpose, but they may not always be acceptable, since there is no guarantee that the recipient actually read or understood the notice.  Perhaps a better approach is to send each recipient an attached form that enables them to acknowledge each instruction within the hold notice to confirm a more complete understanding – these forms can even be set up as enterable PDF forms that even enable digital signatures so that no printing is required.

Tomorrow, 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.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Daily Is Eighteen! (Months Old, That Is)
 

Eighteen months ago yesterday, eDiscovery Daily was launched.  A lot has happened in the industry in eighteen months.  We thought we might be crazy to commit to a daily blog each business day.  We may be crazy indeed, but we still haven’t missed a business day yet.

The eDiscovery industry has grown quite a bit over the past eighteen months and is expected to continue to do so.   So, there has not been a shortage of topics to address; instead, the challenge has been selecting which topics to address.

Thanks for noticing us!  We’ve more than doubled our readership since the first six month period, had two of our biggest “hit count” days in the last month and have more than quintupled our subscriber base since those first six months!  We appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful eDiscovery news and analysis.  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, The Electronic Discovery Reading Room, Unfiltered Orange, Atkinson-Baker (depo.com), Litigation Support Technology & News, Next Generation eDiscovery Law & Tech Blog, InfoGovernance Engagement Area, Justia Blawg Search, Learn About E-Discovery, Ride the Lightning, Litigation Support Blog.com, ABA Journal, Law.com and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

As we’ve done in the past, we like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

eDiscovery Trends: Is Email Still the Most Common Form of Requested ESI?

eDiscovery Trends: Sedona Conference Provides Guidance for Judges

eDiscovery Trends: Economy Woes Not Slowing eDiscovery Industry Growth

eDiscovery Law: Model Order Proposes to Limit eDiscovery in Patent Cases

eDiscovery Case Law: Court Rules 'Circumstantial Evidence' Must Support Authorship of Text Messages for Admissibility

eDiscovery Best Practices: Cluster Documents for More Effective Review

eDiscovery Best Practices: Could This Be the Most Expensive eDiscovery Mistake Ever?

eDiscovery 101: Simply Deleting a File Doesn’t Mean It’s Gone

eDiscovery Case Law: Facebook Spoliation Significantly Mitigates Plaintiff’s Win

eDiscovery Best Practices: Production is the “Ringo” of the eDiscovery Phases

eDiscovery Case Law: Court Grants Adverse Inference Sanctions Against BOTH Sides

eDiscovery Trends: ARMA International and EDRM Jointly Release Information Governance White Paper

eDiscovery Trends: The Sedona Conference International Principles

eDiscovery Trends: Sampling within eDiscovery Software

eDiscovery Trends: Small Cases Need Love Too!

eDiscovery Case Law: Court Rules Exact Search Terms Are Limited

eDiscovery Trends: DOJ Criminal Attorneys Now Have Their Own eDiscovery Protocols

eDiscovery Best Practices: Perspective on the Amount of Data Contained in 1 Gigabyte

eDiscovery Case Law: Computer Assisted Review Approved by Judge Peck in New York Case

eDiscovery Case Law: Not So Fast on Computer Assisted Review

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.