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Ethics

Increasing Your Technological Competence, Part 2

Collaboration apps, forensic tools, and discovery software are just a few technologies that an attorney must juggle regularly. As old technologies update and new ones emerge, will you adapt or fall behind? At first, keeping up with these changes may seem impossible, but there are multiple steps you can take. Brush up on your knowledge by reading case law, eDiscovery blogs, and regulations on data collection. Learn more about the retention policies for popular social media and messaging platforms. Discuss industry news and trends at conferences or with colleagues. [1] The list goes on. In 2015, the California Bar committee weighed in on the topic, providing a list of 9 skills needed for technological competence. In part 1 of this mini-series, we discussed the first five skills listed by the committee. As the last segment on increasing technological competence, this blog will identify the final four skills.

Explanations of the Final Four Skills

  1. Engage in a competent and meaningful Meet and Confer with opposing counsel concerning an eDiscovery plan.

Industry knowledge and open-mindedness are the key to any successful Meet and Confer. If both sides lack these aspects, compromise will be difficult to achieve. For the knowledge aspect, lawyers must be well-versed in technical skills and ESI investigative practices. Technical skills are useful for resolving processing and production issues. Familiarity with the best practices for eDiscovery will also save you time, money, and headaches.

  1. Perform data searches.

Before conducting a data search, litigants must decide their search method: keyword searching and/or predictive coding (TAR). As the traditional approach for document review, keyword searches are often seen as the safer choice. Though filters and queries can be used to refine the searches, studies have shown that TAR is more effective and cost-efficient. In fact, litigants who opt for TAR over keyword searches save 50 to 70 percent in review costs. [2] Though both approaches can be used at once, the order of usage is important. In FCA US, LLC v. Cummins, Inc., No. 16-12883 (E.D. Mich. Mar. 28, 2017), Judge Cohn only permitted keyword searches after the TAR process was finalized. [3]

  1. Collect responsive ESI in a manner that preserves the integrity of the ESI.

While selecting the form of production, you must consider how the data and metadata will be presented. Typically, native files are preferred over static TIFF or PDF images because they preserve the document’s metadata. Though the requesting party may call for a specific form of production, the court can deny requests and issue sanctions for noncompliance. The integrity of the ESI is also impacted by the means of data collection. To ensure that the correct metadata fields (creation date, modification date, etc.) are shown, collect the evidence through appropriate forensic and eDiscovery software.

  1. Produce responsive, non-privileged ESI in a recognized and appropriate manner.

Through respectful communication and cooperation, parties must negotiate an ESI protocol that details production and review specifications. These specifications must include the required media types, format of production, and preferred review software. After agreeing on the most efficient methods and tools, disclose the negotiated discovery plan to the court. [2]

 

[1] Matthew Knouff, “How to Gain & Maintain Technology Competence — Element 1: Education — Part 1 of 3,” ESI Survival Guide, March 30, 2021.

[2] Hon. Joy Flowers Conti and Richard N. Lettieri, “E-Discovery Ethics: Emerging Standards of Technological Competence,” The Federal Lawyer, 2015.

[3] Doug Austin, “Court Determines TAR Without Keyword Search Culling First is Preferable: eDiscovery Case Law,” CloudNine. https://cloudnine.com/ediscoverydaily/electronic-discovery/court-determines-tar-without-keyword-search-culling-first-preferable-ediscovery-case-law/?pg=ediscoverydaily/ethics/increasing-your-technological-competence-part-2/

Need a Data Retention Policy? Here’s How to Build One

Now that most industries are going paperless, companies must create a comprehensive data retention policy. The purpose of a data retention policy is to establish procedures for labeling, storing, and deleting electronic (and physical) records. [1]  Most companies acknowledge the need for a retention policy, but they don’t commit to creating one. A 2000 ABA study found that 83% of the responding companies had no established protocol for handling discovery requests. Despite this unsettling statistic, 77% of the companies expected discovery requests to increase in the future. [2]  Many reasons support the need for comprehensive retention policies. One of the most pressing reasons is the explosion of ESI in recent years. For instance, corporate email alone is estimated to increase annually at a compounded rate of over 13%.  Without a data retention policy, an organization in the midst of litigation would be responsible for organizing large volumes of data with little time to do so. By proactively developing data management policies, companies will avoid the pressures of looming deadlines. Ensuring that information is properly handled also minimizes a company’s risk for sanctions. [1]  The following is a list of steps and suggestions for developing a data retention policy.

  • Do your research on relevant laws

Certain state and federal laws mandate specific preservation and deletion practices. HIPAA and GLBA are older examples of ESI regulations enacted in the late 1990s. However, states are constantly reviewing and revising their ediscovery laws, so it’s important to stay on top of any legislation changes.

  • Determine when to archive or delete data

While corporations are not expected to store every single electronic document, deletions must be orderly and purposeful. The practice of strategically deleting unneeded data is referred to as “defensible deletion.” When done correctly, defensible deletion is cost-efficient, storage-friendly, and most importantly, legal. Defensible deletion is protected by Rule 37(e) of the Federal Rules of Civil Procedure (FRCP). The rule prohibits sanctions against electronic records that were lost during good-faith deletion procedures. [3]

  • Review how your data is housed

In this step of the process, it’s important to ask what, where, and how. What data types are being stored, and how should they be classified (i.e. social media, email, transactions)? What are the retention policies for each medium? What’s the purpose of preserving this information? Where is it being stored, and does this location need to be changed to a better one? How long does the data need to be stored in order to comply with applicable state and federal laws?

  • Monitor your policy

Regularly review your policy to ensure that your company is following its outlined regulations. If you notice that your company is deviating from the policy’s storage and deletion procedure, fix the issue as soon as possible to minimize any legal risks. Routine audits also make it easier to make policy adjustments as needed.

  • Assign accountability

Determine who will be responsible for enforcing the policy throughout the company. This person or department must be well-versed on the policy’s provisions, and they must be ready to testify in court about the company’s retention procedures. [2]

  • Limit your paper trail

Consider a provision that requires electronic copies of physical documents. Some companies are still hesitant to transition to completely paperless operations. Though this hesitancy is understandable, it’s recommended to save an electronic version of all paper records. This suggestion is merely that, just a suggestion. Completely converting to electronic records is not a mandatory step in creating an effective data retention policy. However, this step would speed up the process of identifying relevant data for litigation. [1]

[1] Carlos Leyva, “Data Retention & eDiscovery,” Digital Business Law Group.

[2] “Document Retention & Destruction Policies for Digital Data,” Applied Discovery, LexisNexis, 2004.

[3] Law Offices of Salar Atrizadeh, “Electronic Discovery and Data Retention Policies,” Internet Lawyer Blog, May 18, 2020.

Be a Gator for a Day in March and Learn About InfoGov in Houston This Month!: eDiscovery Trends

A two-topic day for us with a couple of terrific educational opportunities!  One free CLE educational program in Houston comes up in just ten days!  And, the other happens in Florida and currently has early bird pricing available for a wonderful full day conference in March!

ACEDS Houston Event

Our first event of the year in the Houston chapter of the Association of Certified E-Discovery Specialists (ACEDS) is on Thursday, January 23rd from noon to 1:30pm CT at The Houston Club at 910 Louisiana Street, Suite 4900, Houston, TX 77002. Todd Brown and Lisa Cromwell of Access Sciences will be presenting Information Governance Essentials on that day.

This CLE educational* program will help you understand what Information Governance is and learn practical tips and best practices on applying Information Governance essentials to your Firm and Corporate practice, including a holistic approach to InfoGov and a 7-point InfoGov model!  With data in the world doubling every 1.2 years and data privacy considerations becoming vital due to the General Data Protection Regulation (GDPR) and California Consumer Privacy Act (CCPA), Information Governance has become more important than ever, so join us on the 23rd!  You can register here through January 22.

University of Florida E-Discovery Conference

Believe it or not, this is the eighth year for the University of Florida E-Discovery Conference.  As usual, the panel of speakers is an absolute who’s who in eDiscovery (be a gator, get it?).  And, if you act quickly you can save big to attend!

The annual one-day conference will be held this year on Thursday, March 19th from 8:00am to 5:40pm ET.  This year, the focus is to show you how to work smarter, not harder to ensure the success of your project.  As you can always expect from the U-Fla conference, there are a veritable plethora of experts, including Craig Ball, George Socha, Tom O’Connor, Scott Milner, Kelly Twigger, Tessa Jacobs, David Horrigan, Canaan Himmelbaum, Suzanne Clark, Julie Brown, Mike Quartararo, and Ian Campbell.  And, a bunch of distinguished federal and state judges, including U.S. Magistrate Judges William Matthewman, Mac McCoy, Patricia Barksdale, and Gary Jones.  And, I’m honored to be participating for the third straight year as one of the presenters.  Do you like Jeopardy?  If so, you’ll want to catch our session – I’m going to be one of the “contestants” in “E-Discovery Jeopardy”.  Hopefully, I won’t be singing this song afterward!  ;o)

I’ll have more details on this conference as we get closer, but U-Fla is once again offering an “Early Bird Special” for the next week.  You can attend this day long conference packed with practical advice, experts, hot topics, and FL CLE for only $49 livestream or $69 in person!  After that, the price will go up to $99 for live streaming and $199 in person (still a bargain, but you can get it even cheaper if you act quickly).  Last year, the in-person slots were sold out, so that is another reason to act quickly.  You can register here for the conference.  Hope to see you there!

So, what do you think?  Are you looking for good eDiscovery education?  If so, consider checking these out!  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.

It’s E-Discovery Day 2019! Check Out Today’s Webcasts and In Person Events!: eDiscovery Best Practices

It’s time for another E-Discovery Day!  By my count, this is the fifth annual event that includes a combination of webcasts and in-person events to promote discussion and education of eDiscovery (we won’t hold it against them that they want to spell it with that pesky dash).  Here are links to some of the webcasts and in-person events happening today!

According to Exterro, the organizer of the event, there were 2,660 participants in 19 webcasts and 14 in-person events last year.  This year, I count a whopping 22 webcasts and 16 in-person events and the earliest webcast started at midnight Pacific time!  You may have already missed it!  And that’s only the ones officially listed on the E-Discovery Day webcasts page here, there are others I’ve seen as well.  You can participate by hosting your own educational webcast and submit one for the list.  Eeegads! (or is it E-eegads?)… ;o)

In addition, there are also several in-person events and networking opportunities around the country – here is a link to those.  Some are happy hours and other networking events, others are actual local educational events.  Click on the event in your area to RSVP and find out more – there’s still time!

So, what do you think?  Are you “celebrating” E-Discovery Day?  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.

Here’s Something that Canada and South Carolina Have in Common: eDiscovery Trends

They both just recently adopted changes to their rules of professional conduct that include a duty of technology competence.

Leave it to Bob Ambrogi – the source of all duty of technology competence updates on his excellent LawSites blog for the information.  Here’s the lowdown:

Canada

As Bob reported way back in 2017, the Federation of Law Societies of Canada had proposed changes to its Model Code of Professional Conduct that would include a duty of technology competence similar to ABA Model Rule 1.1, Comment 8.  On Oct. 19, the Federation formally amended its Model Code to include that duty of technology competence. Similar to the ABA rule, the Federation’s duty is embodied in comments to its rule on maintaining competence, Rule 3.1-2. These new comments say:

[4A] To maintain the required level of competence, a lawyer should develop an understanding of, and ability to use, technology relevant to the nature and area of the lawyer’s practice and responsibilities. A lawyer should understand the benefits and risks associated with relevant technology, recognizing the lawyer’s duty to protect confidential information set out in section 3.3.

[4B] The required level of technological competence will depend on whether the use or understanding of technology is necessary to the nature and area of the lawyer’s practice and responsibilities and whether the relevant technology is reasonably available to the lawyer. In determining whether technology is reasonably available, consideration should be given to factors including:

(a) The lawyer’s or law firm’s practice areas;

(b) The geographic locations of the lawyer’s or firm’s practice; and

(c) The requirements of clients.

Bob notes that “Just as individual states must adopt an ABA model rule, the individual Canadian provincial and territorial law societies must adopt this rule.”  So, we’ll see how quickly that happens.

South Carolina

The day before Thanksgiving, the Supreme Court of South Carolina approved a package of amendments to the state’s Rules of Professional Conduct, all based on the 2012 amendments to the ABA Model Rules of Professional Conduct, which included a duty of technology competence as embodied in ABA Model Rule 1.1, Comment 8.  This made South Carolina the 38th state to adopt a duty of technology competence based on ABA Model Rule 1.1, Comment 8.  See the map above and Bob’s post here for all 38 states.

The new South Carolina provision is a modified version of the ABA model rule. It is found in a new Comment 6 to Rule 1.1, and reads:

“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including a reasonable understanding of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit information related to the representation of a client, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”

In its order, the Supreme Court also amended Rule 1.6 (and comment 20 to Rule 1.6), pertaining to confidentiality of information, to add a paragraph (c), which reads:

“A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”

Bob notes that South Carolina’s rule adds a restrictive clause to that, so that the duty extends only to “technology the lawyer uses to provide services to clients or to store or transmit information related to the representation of a client” and I agree with Bob that lawyers need to also understand the technology that their clients use as well.  So, maybe it’s more like 37 1/2 states have adopted a duty of technology competence?  ;o)  Regardless, Bob’s posts linked above provide more information on the updates from both jurisdictions.

So, what do you think?  Are you surprised that we still have 12 states that haven’t adopted a duty of technology competence?  Please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © LawSites

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.

Issuing the Hold is Just the Beginning: 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 23, 2012, and concludes our two-part series on this topic.  There is more to litigation holds than just issuing an automated hold, suspending auto-delete programs (including those for text and other messaging apps) and tracking the responses.

Last week, 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 part of the litigation hold tracking solution discussed in last week’s post, or it could even be 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.

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.

Court Denies Sanction Request for Attorney Who Hung Up on Opposing Counsel One Time: eDiscovery Case Law

In Ewing v. Aliera Healthcare, No. 19cv845-CAB-LL (S.D. Cal. Aug. 12, 2019), California Magistrate Judge Linda Lopez denied the plaintiff’s motion for sanctions for “rudely and unprofessionally” hanging up on the plaintiff during a call that defendant’s counsel made to the plaintiff to cancel a meet and confer appointment.

Case Background

In support of his motion, the plaintiff stated that “Local Rule 83.4 requires civil, courtesy and dignity in all communication, oral and written.”  The plaintiff also noted that defendant’s counsel “admitted to hanging up the phone on Plaintiff to the Court’s law clerk” and also requested permission to file a reply.

The defendant opposed the plaintiff’s motion on the grounds that “Plaintiff has failed to establish why Judge Lopez should sanction counsel for Aliera” noting that at issue is only “one phone call between Plaintiff and Aliera’s counsel on July 24, 2019.”  The defendant also stated:

“Plaintiff insists on recording every phone conversation, despite counsel for Aliera objecting to such recordings…The reason counsel cut his July 24 phone conversation short was because he had already confirmed that the meet and confer meeting with Plaintiff would take place on July 30; not on July 25 as Plaintiff later demanded, and despite Plaintiff’s protestations and desire to schedule it for the week of July 22…Plaintiff [then] insisted on demanding why Judge Lopez allowed Aliera’s counsel, Dwight Francis, to appear at the ENE on July 1, 2019. This extraneous demand was irrelevant to the topic of the July 24 call, and followed up on a letter Plaintiff had earlier written counsel on the same non-issue. Counsel, who was extremely busy, informed Plaintiff that he would need to take that issue up with Judge Lopez, and ended the call.”

Judge’s Ruling

Judge Lopez began her ruling by stating: “As an initial matter, the Court denies Plaintiff’s request for leave to file a reply. The Court has reviewed the briefing and finds that it has sufficient information on this issue. Notably, Plaintiff’s Motion lacks any law or authority in support of the request for sanctions.”

She ended her ruling by stating: “Here, the conduct at issue in Plaintiff’s Motion, defense counsel hanging up the phone prematurely one time during a conversation with Plaintiff, does not warrant sanctions. Indeed, defense counsel’s opposition sets forth a reasonable explanation of why defense counsel “cut short” the July 24, 2019 phone conversation. Accordingly, the Court DENIES Plaintiff’s request to impose sanctions. The Court also DENIES Defendant’s request to order Plaintiff to compensate Defendant for the time incurred in having to oppose the instant Motion. However, the Court reminds the parties that any future unprofessional conduct or otherwise improper conduct (including but not limited to filing motions with no basis in the law) may warrant a motion for sanctions by either party.”

So, what do you think?  Should attorneys be sanctioned for hanging up on each other?  Or for filing sanctions motions for opposing counsel doing so?  Or both?  ;o)  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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.

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.

Today’s Webcast Will Show You How to Think Like a Millennial When Addressing eDiscovery Needs: eDiscovery Webcasts

As we learned in Tom O’Connor’s recent five part blog series, millennials may be changing eDiscovery (depending on your point of view).  Regardless, eDiscovery is changing and millennials may be a BIG part of that change.  TODAY’S webcast will help you think like a millennial to address your eDiscovery needs.

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Thinking Like a Millennial in eDiscovery.  This CLE-approved* webcast session will discuss how evolving technology trends are impacting eDiscovery today and how to think like a millennial to stay on top of those developing trends. Key topics include:

  • Understanding Millennials and How They Differ from Previous Generations
  • Drivers for Millennials’ Thinking Today
  • How Litigation Support and eDiscovery Has Evolved Over the Years
  • Challenges Posed by BIG Data and Variety of Data Sources
  • Ethical Duties and Rules for Understanding Technology
  • Impact of Millennials on Legal Technology and eDiscovery
  • Your Clients May Have More ESI Than You Think
  • Recommendations for Addressing Today and Future Technology Challenges

As always, I’ll be presenting the webcast, along with Tom O’Connor.  To register for it, click here – it’s not too late! Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to learn how the habits of millennials will impact your eDiscovery processes, this is the webcast for you!

So, what do you think?  Are you concerned about how the habits of millennials will impact your eDiscovery processes?  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.

Is eDiscovery “Too Practical” to Offer as Part of Law School Curriculums?: eDiscovery Trends

We’ve certainly noted before how slow law schools are to provide eDiscovery education.  But, are they slow to push for it because eDiscovery is “too practical”?  At least one law school dean suggests that might be the case.

In Legaltech® News (‘Too Practical’? Why Some Law Schools Don’t Offer E-Discovery Education, by Victoria Hudgins), the author notes that “most U.S. law schools aren’t providing e-discovery courses to prepare new lawyers for the potential work of examining and preserving electronic data.”

“I think part of the reason is they may not see the importance of eDiscovery or see it as very—almost ironically—too practical,” said Drexel University Thomas R. Kline School of Law Dean Daniel Filler.

While some law schools may view eDiscovery as a practical skill they can learn later on the job, Drexel takes a different approach by offering its students a standalone eDiscovery course.

“I think a big part of 21st century legal practice is making sure that lawyers are sophisticated enough with technology that they remain in control [and make] sure they really protect their clients,” Filler said. “There is a risk with this move toward technology that they will not understand it well enough and refer to nonlawyers.”

But not all law schools see the need for dedicated eDiscovery education. While Concord Law School associate dean of faculty and professor Shaun Jamison said his law school doesn’t offer an eDiscovery course, he noted that eDiscovery is intertwined into other classes. “Having the [e-discovery] basics would be enough to understand what the issues are,” he said.  A link to Concord’s E-discovery, Privacy, and Cybersecurity Law blog, with links to technology related programs can be found here.

Until eDiscovery “becomes more common across legal practices”, Jamison doesn’t see more law schools implementing eDiscovery-specific courses.

Hmmm…that’s an interesting take.  How much more common does it have to become for law schools to take notice?  It’s a standard part of litigation and becoming more common in compliance and investigations too.  But, I digress…

Andrea D’Ambra, who teaches an eDiscovery course at Temple University’s Beasley School of Law and William & Mary Law School while leading Norton Rose Fulbright’s U.S. e-discovery and information governance practice, argued that basic eDiscovery knowledge is essential for litigators as electronic information grows in volume and complexity.

“We are really dealing with text messages, social media pages, emails and Slack and all these methods of communication that are really prevalent in the business world and are not necessarily easy to preserve and collect to [show] to opposing parties.”

While D’Ambra noted that name-dropping an eDiscovery course won’t get a law student an immediate job, she said it will likely get them noticed on the job.

“I think it’s undervalued when you are in the interview process but I will say I have countless students that have written to me after they get into their law firm and they say they were immediately useful to the partners.”

Sadly, most law schools don’t have an eDiscovery course, last I checked.  For every Georgetown, University of Florida and Duke University that have a program for eDiscovery, there are dozens (if not hundreds) of law schools that don’t even have any program (not even an extracurricular program), much less a formal eDiscovery course.

So, what do you think?  Will most law schools ever embrace eDiscovery best practices as a standard curriculum course?  As always, 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.