1 Dcument Retentin: The 800 lb. Grilla BY MICHAEL KELSHEIMER EMPLOYMENT SECTION LOOPER REED & MCGRAW, P.C. JASON RODRIGUEZ IT MANAGER LOOPER REED & MCGRAW, P.C. This bklet is fr infrmatinal purpses nly and shuld nt be cnsidered legal advice. Additinally, the cncepts addressed in this bk are meant as general guidance nly; specific legal issues shuld be discussed with qualified legal cunsel. Cpyright 2009 Lper Reed & McGraw, P.C. All rights reserved.
2 TABLE OF CONTENTS AVOIDING BAD DATA Step 1: Implement a persnal plicy 3 Step 2: Give pinters 3 Step 3: Implement restrictins 4 CREATING A DOCUMENT RETENTION POLICY Step 1: Identify 5 Step 2: Evaluate 7 Step 3: Implement 9 Step 4: Enfrce 12 INSTITUTING LITIGATION HOLDS Step 1: Investigate 15 Step 2: Cllect 16 Step 3: Fllw up 17 Step 4: Make a Deal 18 Step 5: Utilize and Prduce Data 19 FEDERAL LAWS 22 Page Lper Reed & McGraw, P.C.
3 Dcument retentin is a matter f grwing imprtance fr bth lawyers and clients. I ften characterize it as the 800 lb grilla in the crner f the rm that n ne wants t talk abut. Lawyers and clients perceive dcument retentin as time-cnsuming, trublesme, and mst imprtantly, difficult t understand. Nt because the subject itself is t cmplex, but because it invlves cmputers and servers which are as much a mystery t mst peple as the innerwrkings f their car. Many litigatrs even refuse t push fr electrnic dcuments frm ppsing parties because they have nt adequately prepared their client fr the inevitable reprisal. T make matters wrse mst clients simply dn t have the time r resurces t devte t a litigatin hld when ptential disputes arise. They all knw the grilla is there watching, waiting, staring, and that it will smeday cme ut f the crner and clbber them. Fr tday, hwever, everyne feels there are mre pressing prblems t address. One thing is certain. If yu wait until yu receive that first request frm ppsing cunsel when the infrmatin really matters, yu wn t even hear the grilla cming... I ve dne my best t make the subject wrkable by breaking it dwn int three basic categries: Aviding Bad Data, Creating Dcument Retentin Plicies, and Instituting Litigatin Hlds. Frm there, each subject is further divided int smaller steps that hpefully make the tpic seem digestible, if nt smth, ging dwn. 1, 2 AVOIDING BAD DATA Garbage in leads t garbage ut. It wn t matter that yu have the mst sphisticated dcument retentin plicy in the wrld if relevant, prducible, infrmatin destrys yur case. The mst cmmn surce f garbage data is prly thught-ut . If mm was right when she advised us t think befre we speak, she certainly wuld have been right in advising us t think befre writing an . s ften sit n servers mnths r years waiting t rear their ugly head when a request fr prductin cmes in. I dn t knw if the fllwing examples are all real s, but they perfectly illustrate the ptential damage s can cause: Client t In-Huse Cunsel: I think this is illegal, but I m ging t d it anyway, unless yu tell me nt t. 1 This guide is nt designed t be read as thugh it were an article. Instead, it is a practical tl t help yu wrk thrugh the prcess f dealing with dcument retentin frm start t finish. Reading it like an article culd result in that verwhelming sense f despair that mst peple feel when thinking f dcument retentin (even thugh this is an exceptinally distilled versin f the thusands f pages f data and cases I have sifted thrugh t prepare it). Use it accrdingly, and remember the advice mm used t give... Hw d yu eat an elephant (r in this case a grilla)? One bite at a time! 2 If yu run a Frtune 1000 cmpany r a multi-natinal cnglmerate, this guide will fall far shrt f all f the cnsideratins needed fr a business f yur size. It might serve t give ideas, but shuld nt be the sle basis fr dealing with dcument retentin. If yur business\client is this large cngratulatins, and give me a call fr mre detailed advice suited t yur circumstances. Page Lper Reed & McGraw, P.C.
4 Client t Client: We culd d [blank] and we wuld prbably g int the fiery pits f hell. ha. ha." Between Micrsft Execs: I persnally gt burned by the Intel 915 chipset issue... I chse my laptp because it had the vista lg and was pretty disappinted that it wuldn t run Glass, but mre imprtantly, it wuldn t run Mvie Maker. I nw have a $2100 machine. Between Micrsft Execs: In the end, we lwered ur requirement t help Intel make their quarterly earnings... Between Credit Rating Managers: The agencies are creating an even bigger mnster the CDO market. Let s hpe we are all wealthy and retired by the time this huse f cards falters. Between Client Managers: We are in breach f this agreement and need t discuss. has mved far beynd the tl it was riginally designed t be. It has mrphed int a frm f n-ging cnversatin that has lst its frmality. This is especially true because we are ften mre bld in writing than in persn. Fr these reasns, it is imprtant that yu regularly remind every member f yur staff f the danger psed by writing things in s that wuld cause them applexy if discvered in an agreement r ther dcuments sent t a recipient utside the cmpany. Fllw these steps t imprve the quality f yur cmpany s Step 1: Implement a persnal plicy. Persnal s, much like persnal calls, are impssible t ttally rt ut f yur system. Unless yu run a Stalinistic wrkplace, it is unrealistic t expect that yu can maintain a pleasant wrk envirnment withut yur staff sending persnal s. Fr that reasn, I recmmend yur staff use thirdparty, internet-based, accunts such as Gmail, Htmail, r Yah fr their persnal cmmunicatin. If they use an internet-based system, the cmmunicatin wn t be stred n yur server r realistically subject t discvery. Step 2: Give pinters. Present yur staff the fllwing tp ten list fr writing s: 10. Get t the pint right away. 9. Prf-read. 8. N ptty muth. 7. N criticism abut c-wrkers. Page Lper Reed & McGraw, P.C.
5 6. Avid being t infrmal. 5. Think abut the value f a face-t-face cnversatin vs. sending an . Sme cmpanies have even implemented n- Fridays. 4. Remember sending a letter frm yur wrk accunt (which lists the business name in the address) is a reflectin n the cmpany. 3. Scrub (remve the metadata) any file yu attach t an that is ging utside the cmpany. 2. Be careful with reply t ALL. 1. Fllw Mm s advice: Think befre yu... write. Make these pinters part f yur staff handbk, and as much as it will pain yu, enfrce them. It is human nature, nt just that f children, t heed warnings nly when they cunt fr smething. If yur staff learns that yu wn t enfrce these rules, they, and yu t, will eventually fall back int bad habits. Step 3: Implement restrictins. Cnsider implementing rules restricting staff members frm cmmunicating abut wrk tpics via instant message r, the latest rage, Twitter. Case law is just nw starting t prvide serius guidance fr e-discvery, s there certainly are nt cases talking abut whether instant messages are smething that must be saved. If it is relevant, hwever, yu can bet that there will be case law n it in the future and yu dn t want t be the test case. By implementing a plicy against using these mechanisms fr wrk cmmunicatin, yu decrease the risk that yu will becme respnsible fr retaining such infrmatin. See, this is nt s hard. Nw, let s mve n t creating a dcument retentin plicy. CREATING DOCUMENT RETENTION POLICY I begin this sectin by intrducing a cncept that I will use ften If yu culdn t explain it t a judge with a straight face, dn t d it. In creating yur dcument retentin plicy and instituting litigatin hlds yu will be tempted t institute rules that might be questinable. Dn t succumb. When reviewing the case law, I bserved that curts treat e-discvery with a lt f cmmn sense. If yur plicy was thught ut and reasnable, yu are likely t avid sanctins, ptentially significant expense, and the death knell that a spliatin instructin wuld sund fr yur case. It is nt required that yu have a dcument retentin plicy. Let me repeat, yu dn t have t have ne if yu dn t want t. That said, the benefits f dcument retentin are simple t understand: rganizatin f infrmatin, increased strage space, and fr ur purpses Page Lper Reed & McGraw, P.C.
6 making litigatin hlds easier t implement. Withut a dcument retentin plicy, trying t preserve data nce a dispute arises will be much mre difficult, thugh it can be dne. The verarching theme in cases regarding dcument retentin plicies is reasnableness. Yes, the reasnable man lawyers feared in their law schl trts class is back. If yur plicy is reasnable, yu will likely avid the wrath f a judge. What is reasnable, thugh? Withut ging thrugh each case, let me simply say that yu can avid ptential difficulties with a curt by fllwing the advice abve dn t d it unless yu believe yu can explain it t a judge with a straight face. Sme f yu might ask, What abut all f the cases where peple are sanctined fr e- discvery vilatins? With a few exceptins, nted belw, curt decisins abut data retentin dn t generally invlve dcument retentin plicies. Rather, they cncern litigatin hlds that halt the prcess f dcument eliminatin. There are fur basic steps t take when creating a dcument retentin plicy: Identify, Evaluate, Implement, and Enfrce. Step 1: Identify. Befre yu can decide what yur plicy will be, yu ve gt t take a lk at the rules and ther factrs that affect hw it will lk: Whether yu are aware f it r nt, many federal and state laws require retentin f certain dcuments, thus affecting every business dcument retentin plicy. A partial list f federal laws is included at the end f this guide. I learn abut new requirements all f the time, s yu cannt cunt n this list t be cmplete. Examine the laws that affect yur business and list each f the requirements that affect yu. The electrnic strage systems used by businesses vary incredibly. Trying t take int cnsideratin each permutatin and its impact n the way yu build a dcument retentin plicy is far beynd the scpe f any guide n dcument retentin. What I can ffer yu is a basic list f places where yu may find infrmatin stred: Hme cmputers 3 Cd-Rms Laptps Desktps Servers Back-up tapes 4 Flash drives 6 GPS\Black bxes Audi recrdings and vic 7 Instant messages 8 3 Orrell v. Mtercarparts f America, 2007 WL (W.D.N.C. 2007) 4 Sme curts say, N. Others say, Yes: Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) (Back-up tapes generally inaccessible data and nt required t be preserved); Treppel v. Bivail Crp., 249 F.R.D. 111 (S.D.N.Y. 2008) (saving required). Page Lper Reed & McGraw, P.C.
7 Cell phne pictures 5 PDAs Yu will need t take the types f infrmatin yu use int cnsideratin in mlding yur plicy. Nt nly d yu have t cnsider the electrnic data yu pssess, but the sftware which makes that infrmatin accessible. D yu have custm-designed sftware? What happens if yu change sftware? Will the data in the ld prgram be fully available in the new prgram? If, fr example, yu abandn Micrsft Outlk t mve t a new system, yu must be able t get t the ld infrmatin when it becmes relevant in discvery. Take this int cnsideratin when switching prgrams and be certain t maintain licenses until all the dcuments which utilize the ld sftware have been deleted under yur dcument retentin plicy. While making sure yu keep ld sftware, yu als must make sure t keep hardware t access the infrmatin. After all, hw many f yu have seen a 5.25 flppy drive lately? Thugh this guide fcuses n electrnic infrmatin management, yu must give similar cnsideratin t paper data. The fllwing examples ffer a starting place in cnsidering surces f paper data which might nt als be kept electrnically: Signed dcuments Cmpany plicies Handwritten ntes Calendars Accunting\tax recrds Bills\statements frm vendrs Crrespndence Mems Plans\drawings Deeds\leases HR files Requests fr prpsal Marketing materials and presentatins Billables\payables recrds Building plans\drawings Phtgraphs 6 Clumbia Pictures Industry v. Bunnell, 2007 WL (C.D. Cal. 2007) 7 E*Trade Securities LLC v. Deutsche Bank AG, 230 F.R.D. 582, (D.Minn., 2005); Del Camp v. Kennedy, 2006 WL (N.D.Cal. 2006)(unpublished pinin). 8 N cases directly n pint at this time. 5 Smith v. Café Asia, 246 F.R.D. 19 (D.D.C. 2007) Page Lper Reed & McGraw, P.C.
8 Many cmpanies utsurce ne r mre functins f their business. These utside dcuments must als be cnsidered because they are within yur cntrl fr discvery purpses. What yu cntrl is brader than what yu pssess. Yu may nt pssess yur accuntant s file fr last year s taxes, but yu d have cntrl ver it. Nt nly must yu cnsider what yur dcument retentin plicy will be fr this type f infrmatin, yu must als cnsider yur vendrs dcument retentin plicy. If they wuld therwise eliminate yur data in a perid that is different than yu prefer, it can adversely affect yu. Imagine if yu prduced thusands upn thusands f pages f dcuments fr a lawsuit that is nw ver. The data has been deleted at yur ffice, but yur law firm has a 5-year retentin plicy r n plicy at all. The dcuments yu prvided the law firm are within yur cntrl and include infrmatin that yu therwise have lng since frgtten. This infrmatin may be discverable in subsequent litigatin. Yu must accunt fr it in yur dcument retentin plicy. Sme businesses have rules regarding dcument retentin in their by-laws r ther rganizatinal dcuments. Make sure that yu take these rules int cnsideratin when determining yur plicy. Yu will nt be able t explain with a straight face that yu deleted dcuments under a dcument retentin plicy which is incnsistent with yur wn crprate by-laws r regulatins. Step 2: Evaluate. Nw that yu have utlined all f the rules and ther parameters that will affect yur dcument retentin plicy, yu can begin t frmulate the framewrk fr the plicy. The factrs identified here cannt be cnsidered exclusive r exhaustive because each business is different and will have different gals and needs. The fllwing will, hwever, serve as a slid base upn which t build yur plan: The simplest, mst effective, dcument retentin plicies are very restrictive n the rights f users regarding where and hw data is stred. Fr this reasn, it is imprtant t cnsider the psychlgical aspects f the plicy yu create. Executives and senir management may find such a plicy t restrictive, preferring t take risks rather than deal with the infringement n their freedm and cntrl ver data. Yu may as well deal with it up frnt. There are sftware slutins t assist with dcument retentin. These prgrams range frm relatively inexpensive t very expensive custmized dcument management systems, r DMS. Regardless f whether yu utilize a DMS, preparing a dcument retentin plicy will largely be influenced by the sftware yu use. In creating the plan, yu will als need t cnsider the questins belw. Again, this list is nt exclusive because I dn t knw yur individual business needs, management style, r cmputer system. Nnetheless, it serves as a great starting pint: Page Lper Reed & McGraw, P.C.
9 What will yu d when a staff member leaves? Will the cmputer hard drive be kept fr a perid f time in case there is needed infrmatin r the staff member attacks the cmpany fr discriminatin r unemplyment incme? Hw lng will yu keep each categry f paper dcuments that yu identified during Step 1? Hw lng will yu keep each categry f electrnic dcuments that yu identified during Step 1? Be wary f especially shrt retentin perids. Businesses that try t avid bad data by implementing very shrt dcument retentin plicies may have truble explaining t a judge with a straight face the business purpse fr the shrtened plicy. 9 Hw will recrds be destryed? Will paper dcuments be shredded? Will electrnic dcuments be deleted utilizing an autmated system, r will there be a persn respnsible? If an individual is respnsible, what prcess will be in place t remind them? As they pass the end f their retentin perid, when will data be destryed Weekly? Mnthly? Yearly? Wh will be respnsible fr: (1) destrying data; (2) enfrcing the plicy; (3) reevaluating the plicy when changes ccur; (4) recgnizing the need t suspend the plicy in the face f pssible litigatin, a subpena, r gvernmental inquiry; (5) managing data held by utside surces, such as law firms and auditrs; and (6) assigning new peple t manage the plicy when thers mve n t new psitins r leave the cmpany? When will the plicy be suspended? What will the prcess be fr: (1) litigatin hlds; (2) gvernmental inquiries; and (3) subpenas? What will be the prcedure fr varius hld types? Clearly lay ut the prcess t be fllwed in each instance. Hw will yu dcument the destructin f data accrding t the plicy? Yu will want t be able t shw a curt r gvernmental agency that yu have systematically fllwed the plicy. Hw will yu rganize dcuments mving frward frm the time the plicy is implemented? Will yu use naming cnventins? What will yur file structure lk like? Will yu mandate strage in specific lcatins? Will yu restrict the use f certain strage devices? The structure fr every business will be different because f the sftware applicatins, management style, and ther unique characteristics f the business. 9 Brccli v. EchStar Cmm. s Crp., 229 F.R.D. 506 (D. Md. 2006) (tw week retentin plicy fr questined). Page Lper Reed & McGraw, P.C.
10 Hw will yu deal with data that exists at the time the plicy is implemented? Paper dcuments can be srted and deleted based n the schedule. Electrnic dcuments may be difficult, if nt impssible, t rganize int the file structure yu implement fr new data, thus requiring a different plan. As yu will see belw, I recmmend that yu d nt attempt t restructure ld data. What is yur present back-up system and hw will it impact yur dcument retentin plicy? Back-up plans are entirely different than dcument retentin plicies, thugh the tw verlap cncerning the accessibility f infrmatin. Thugh there are many frms f back-up they range frm easily accessible systems t very difficult t utilize fr purpses f btaining ld infrmatin. The mre difficult infrmatin t access has been characterized as inaccessible by sme curts. 10 There is a debate abut whether inaccessible back-up infrmatin must be kept during a litigatin hld. Yu may want t seek the advice f an attrney n this pint in the event litigatin arises. 11 Is it apprpriate t mve tward a paperless ffice by scanning all dcuments? This prcess will reduce the physical strage space yur business requires and make it easier t implement a hld because there will be little paper data t sift thrugh. What will yur plicy be with respect t instant messaging, Twitter, and cell phne phtgraphy? Will yu instruct staff members nt t use these devices fr wrk purpses? If yu allw them fr wrk purpses, hw will yu cllect and stre them in the event the plicy is suspended fr a hld? Similarly, will yu instruct staff they may nt use cmpany-prvided cmputers, phnes, and ther devices fr persn cmmunicatin? What will be the penalties fr failing t cmply with the plicy? Yu have t enfrce the plicy fr it t have value. A plicy with n teeth will nt be fllwed. What is the interval at which yu will recnsider and reevaluate the plicy because f changes in yur staff, wrkplace, cmputer system, r laws affecting the business? Hw will yur staff let yu knw they believe the plicy needs t be suspended fr a hld based upn infrmatin they pssess r a situatin they encunter? Step 3: Implement. The fllwing represents an apprach t dcument retentin that can be used n almst any server-based cmputer system. Elements f this plan may r may 10 Nte, sme cmpanies d nt have separate disaster recvery tapes and nly have accessible back-up tapes. If this is the case, there will nt be a separate need t keep disaster recvery tapes because there are nne! 11 Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y.2003) ( inaccessible data nt required t be kept); but see Treppel v. Bivail Crp., 249 F.R.D. 111 (S.D.N.Y. 2008). Page Lper Reed & McGraw, P.C.
11 nt wrk fr yu, but yu can certainly use it as a jumping ff pint fr what will becme the plicy that is unique t yur business: 12 Old Data. This is paper and electrnic data that exists in yur business nw befre the plicy is implemented. Because it wuld cnsume amazing amunts f time t attempt t rerganize yur existing data int the frmat f yur new plicy, it is nt practical t ask yu t d s. Begin by eliminating everything yu presently hld that is lder than the cut-ffs set in the new plicy. Then, ging frward, delete the ld infrmatin accrding t the plicy. During this transitin perid, make sure t keep a license fr any ld sftware prgrams and hardware (remember that ld 5.25 flppy drive) that are used with ld data. New Data. Remember, the legal purpse fr having a dcument retentin plicy is t make it easier t institute a litigatin hld when it becmes necessary. Highly rganized and centralized file systems are the easiest retrieve data. If yu put all f yur data in ne cmputerized filing cabinet (yur server) and implement strict rules regarding the place new data will be stred in that cabinet, there is nly ne place yu have t g when it cmes time t find the data fr a hld. Hence, I recmmend a tw-prnged apprach fr electrnic data n a ging frward basis: . It is unwieldy and difficult t manage, especially n a cmputer system where users have their wn laptp r desktp. The biggest prblems with are: (1) staff deleting them; (2) rganizing them; and (3) persnal cmmunicatins. Even if yu have a centralized system, yur staff generally can delete s frm the system permanently at their desk. In this type f system, each staff member als chses hw t rganize and stre s that are kept fr future reference r use. Shrt f implementing a dcument management system, there are relatively few things that can be dne t cntrl staff behavir with which they cannt circumvent. Nnetheless, yu shuld implement the fllwing three practices: Require staff t use third-party, internet-based, systems fr persnal cmmunicatin. Preventing staff frm sending persnal s is almst impssible. Acknwledging the futility f trying t stp persnal s, I suggest allwing staff t access third-party, internetbased, systems such as Gmail, Htmail, r Yah. Requiring their use will allw yu t keep persnal s ff yur server and the added benefit f reducing the strage space fr retained data. 12 In preparatin f this guide, I spent many lng hurs with ur in-huse IT Manager, Jasn Rdriguez (a man with mre certificatin initials after his name than any persn shuld have). While discussing implementatin f a dcument retentin plicy frm an IT perspective, we cnsidered the simplest cnceivable plicy, given ur lack f knwledge regarding yur cmputer systems. Yu will need t tailr a plan based n yur system, but we have dne the very best we can t prvide basics which will be applicable t any server-based system. Page Lper Reed & McGraw, P.C.
12 Restrict yur staff s ability t permanently delete . Thugh there is n means t accmplish this electrnically unless yu utilize a special system, make it part f the requirements yur staff must fllw. Als, yur IT Prfessinals need t restrict yur staff s ability t archive . This will allw yu ultimate cntrl ver deleting . Require yur staff t use naming cnventins fr saved . Naming cnventins are a system by which everyne uses the same name fr a flder in which they stre s related t certain subjects. Fr example, if yu have a client named Gerge Carlin, each staff member wuld create a sub-flder called Carlin in their flder and save all s related t Carlin in that sub-flder. By using this system, the data related t each subject will be unifrmly stred in sub-flders in each staff member s in-bx. Similarly then, yu can create naming cnventins fr the subject line f s. Fr s related t Carlin, staff members must put Carlin in the subject line smehw. It culd be as simple as Carlin: Is the Request fr Prpsal ready? This will help yu find s if yu have t search the system. Other Dcuments. Virtually all ther dcuments will fall int the remaining categry which includes wrd prcessing files, spreadsheets, plans, mems, ntes, calendars, etc. While nt as unwieldy as , these dcuments are als difficult t cntrl. With the amazing variety f media available t save data, the gal is t frce all data int the single filing cabinet discussed abve. T accmplish this, yu will need t: Instruct staff t save all dcuments t the server. Temprary cpies made fr wrking remtely; transferring data via flash drive, CD Rm, r ther media; r n laptps, must be deleted after use. N drafts r ther dcuments will be kept n any surce ther than the server. This isn t t say that yur staff must refrain frm ever cpying data ff the server, but that the data must be remved frm the alternate surce when its usefulness is cmplete. Als instruct yur IT Prfessinal t disable r severely restrict the staff s ability t save dcuments lcally r n their C:\Drive. If yu cannt d this, have yur IT Prfessinal regularly delete this data frm each individual cmputer. Implement the same naming cnventin utilized with fr the strage f dcuments. Create ne, and nly ne, lcatin n the server fr files t be stred related t a single client r prject such as Carlin in the examples abve. Implement a plicy f deleting all vic s after a certain perid f time because they are discverable. Page Lper Reed & McGraw, P.C.
13 Implement negative plicies. Instruct yur IT Prfessinals t restrict access t instant message prgrams and websites like Twitter. If yu cannt d this, instruct yur staff that instant messaging, Twitter, and the like, may nt be used fr wrk purpses. Prhibit recrding cnversatins by staff members unless it is part f yur business. Achieve Buy-in. Withut it, the whle prcess will be lst frm the start. Peple d a much better jb f fllwing instructins when they understand why it is imprtant. It is abslutely imperative that yur IT Prfessinals understand why data must be deleted in accrdance with the plicy. IT Prfessinals dn t like t get in truble and that ften ccurs when data is lst. Fr this reasn, they are very ften data pack-rats. Stries abund f IT Prfessinals saving data in dd places, including their hme garage, because they are afraid it may be needed sme day. Yu must make them cmfrtable with the plicy. Yur staff, t, shuld understand the plicy. Make it part f yur staff handbk. Step 4: Enfrce. There is n sense in having a plicy if yu d nt enfrce it. As a matter f fact, the ppsite is true. If yu have a plicy and d nt enfrce it, yu will nt be able t explain it t a curt in a way that excuses yur failure t fllw it. If data is missing that shuld therwise be available under yur plicy, it will nt g well fr yu with a curt. Fllw the penalties yu set ut in the plicy. Remember t cnsider the plicy when things change in yur business. Fr example, if yu switch systems dn t frget t review and implement apprpriate changes t the plicy. If yur IT Prfessinal r smene else respnsible under the plicy leaves the cmpany, appint a replacement and get them up t speed. Review the plicy at the intervals set ut in it. INSTITUTING LITIGATION HOLDS An attrney asked me, What is the simplest advice I can ffer a client regarding dcument retentin, and mre particularly litigatin hlds? I replied, Save everything. If yu save everything, yur nly cncern is the cst f lcating and prducing the relevant data. While these csts culd prve enrmus, yu will never find yurself facing sanctins r an instructin t the jury that there was data missing, which they shuld presume was negative t yur psitin. It is als the nly answer I can ffer withut getting int the specifics f instituting a litigatin hld. Page Lper Reed & McGraw, P.C.
14 I respect this query because the vast majrity f small\medium sized business wners dn t even have a staff handbk (I encunter it all the time in my practice). Why wuld they take a step further and have a dcument retentin plicy? The attrney abve scffed at the idea f saving everything because it was ttally unrealistic t expect the business wner t d s. Unfrtunately, it is a quandary withut a gd answer. Certainly, an intelligent business wner, withut a legal backgrund, culd try t make the right decisins abut saving infrmatin nce learning a dispute was pssible. They might even escape the wrath f a judge, but, in the end, the nly way t be certain is t fllw the advice belw r save everything and bear the cst. Litigatin hlds are the single mst challenging, time cnsuming, and imprtant aspect f dcument retentin. Nnetheless, I ve brken it dwn int pieces that shuld be relatively easy t fllw. It begins with the trickiest part f implementing a litigatin hld knwing when the bligatin starts. Get it right, and there are n prblems. Get it wrng, and yu culd find yurself facing sanctins, r wrse, frm a judge wh desn t believe that yu chse the right ccasin t start hlding data. The simplest way I can explain it is that the bligatin arises when a reasnable persn (nt necessarily yur business wner) wuld anticipate litigatin. 13 Yes, t lawyers this sunds a lt like the pint at which the wrk-prduct privilege attaches, but t clients, it ften is nt clear. Fr example, in my area f experience, the questin arises when the bligatin t retain data begins in discriminatin disputes. Des it begin when the staff member makes a cmplaint f discriminatin, while still emplyed with the cmpany, and lng befre terminatin r quitting? Is it when the staff member refuses t accept a severance package that requires signing a release f liability after separatin? Des it attach later when a discverable is sent between tw staff members cnfiding that they suspect the frmer staff member will sue? Or, is it later, when the EEOC request fr infrmatin arrives? 14 This is hard fr lawyers t answer, much less a business wner. Every curt s interpretatin n this pint may be different, s there are tw pieces f advice I can ffer t prtect yu r yur client: (1) start early yu can always stp the hld later; and (2) dcument yur reasns fr starting when yu d. This cmes back t the idea f saying it t a judge with a straight face. If yu have a ratinal, intelligent reasn fr starting the hld at a particular pint, yu are likely t avid negative cnsequences. The starting pint defined, what then is the scpe f yur bligatin? Hw much infrmatin shuld yu keep? Yu culd g with the save everything apprach and stp reading right here. Tempting isn t it? Unfrtunately, as I mentined abve, there is ne big 13 In Texas curts, the duty t preserve evidence des nt arise until a party knws r reasnably shuld knw that there is a substantial chance a claim will be filed, and such evidence is relevant and material. Wal-Mart Stres, Inc. v. Jhnsn, 106 S.W.3d 718, 722 (Tex. 2003). In federal curts it is virtually the same, the bligatin t preserve evidence arises when the party has ntice that the evidence is relevant t litigatin r when a party shuld have knwn that the evidence may be relevant t future litigatin. Fujitsu Ltd. v. Federal Express Crp., 247 F.3d 423, 436 (2d Cir. 2001). Thus, nce a party reasnably anticipates litigatin; it must suspend its rutine dcument retentin/destructin plicy and put in place a litigatin hld t ensure the preservatin f relevant dcuments. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003). 14 Id. Page Lper Reed & McGraw, P.C.
15 reasn yu might nt want t fllw this apprach the cst f keeping everything can be enrmus. In case yu were unaware, back-up tapes are expensive. Our firm uses six tapes every week fr back-up at a cst f abut $150 each. If the firm culd nt recycle the tapes each week, the cst wuld becme astrnmical in a shrt perid. T truly save everything, yu wuld nt be able t delete any f these tapes. Why, yu might ask, can t I just save the last tape f the week r at the end f each mnth? The answer is simple. It wn t retain previus versins f dcuments. Fr example, yu edit a wrdprcessing dcument n Tuesday and it is backed-up that night. On Friday, yu change it again and that night it is again backed-up. Unless yu keep the Tuesday tape, yu wn t have the previus versin f that dcument. Srry. It is a pain, but that is the way it is. Since yu are still reading, I ll assume yu dn t want t save everything. The scpe f yur bligatin is then gverned by state and federal rules f prcedure, 15 but includes dcuments within yur cntrl: Knwn t be relevant; Reasnably shuld be knwn are relevant; Reasnably calculated t lead t the discvery f relevant evidence; Reasnably expected t be requested; and Subject t an existing request. S what happens if yu get it wrng? Yu will get t learn the meaning f spliatin. Spliatin is the legal term fr the destructin f evidence relevant t a case. 16 It des nt have t be intentinal fr yu t be subject t sanctins. 17 In Texas, the burden is n the party claiming spliatin t prve the spliatr failed t preserve discverable evidence. 18 Once spliatin is determined, curts must fashin an apprpriate remedy by cnsidering several factrs. 19 The penalty, in bth state and federal curt, is within the discretin f the trial curt, difficult t verturn n appeal, and can range frm mnetary sanctins t an instructin t the jury that the missing evidence was destryed in bad faith because it wuld have reflected negatively n the spliatr. 20, 21 When issued, such an instructin ften frces a settlement f the case because f the difficulty in vercming the idea it puts in the jurrs minds Fed. R. Civ. P. 26(b); Tex. R. Civ. P ; see als Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y.2003); Natinal Ass'n f Radiatin Survivrs v. Turnage, 115 F.R.D. 543, (N.D.Cal. 1987). 16 Buckeye Retirement C. v. Bank f America, N.A., 239 S.W.3d 394, 401 (Tex.App.-Dallas 2007, n pet.). 17 Wal-Mart Stres, Inc. v. Jhnsn, 106 S.W.3d 718, (Tex.2003). 18 Id. 19 When cnsidering an apprpriate remedy fr spliatin, a trial curt must determine (1) whether there was a duty t preserve evidence, (2) whether the alleged spliatr negligently r intentinally spliated evidence, and (3) whether the spliatin prejudiced the ppsing party's ability t present its case. Buckeye Retirement C., 239 S.W.3d at 401 (citing Trevin v. Ortega, 969 S.W.2d 950, (Tex.1998)). 20 Wal-Mart, 106 S.W.3d at 723; McMillin v. State Farm Llyds, 180 S.W.3d 183, 199 (Tex.App.-Austin 2005, pet. denied); Whitt v. Stephens Cunty, 529 F.3d 278, 284 (5 th Cir. 2008). Page Lper Reed & McGraw, P.C.
16 Smetimes the penalty can even be levied against the lawyers invlved and nt the client. 23 It has becme the lawyers respnsibility t make sure that their clients d, in fact, retain all f the available infrmatin. T be sure yu heard lawyers are respnsible and can be individually sanctined fr failing t make their clients retain dcuments. With this final warning, yu may begin the prcess f instituting a hld. The fllwing five steps will carry yu frm start t finish: Investigate, Cllect, Fllw-up, Make a Deal, and Utilize\Prduce. Step 1: Investigate. At the beginning f the prcess yu need t learn what happened, especially if yu are nt directly invlved in the dispute frm which the hld arises. During the time yu are cnducting yur investigatin, yu need t make sure that relevant data is nt lst. Ntify yur IT Prfessinals and ther staff t cease deleting ALL data, and t preserve existing data in pristine frm, including things such as the hard drive frm the cmputer used by a staff member wh is suing. 24 Remember, deleted infrmatin n a hard drive is nt really gne until it is saved ver with new data, s cntinuing t use the cmputer risks lss f that pseud-deleted data. Yu als need t warn ptential utside surces f data, such as accuntants, attrneys, r payrll cmpanies abut the need t avid deleting infrmatin during the investigatin. Next, yu must put yurself in the shes f ppsing cunsel. Think f yurself as Clumb r Matlck. What infrmatin wuld yu want t help yu prve yur case? It is imprtant t be realistic at this pint. If yu marginalize the ppnent s psitin in yur mind, it will likely cut back n the infrmatin yu preserve, putting yu in the psitin f pssibly running aful f a judge. At this stage yu shuld err n the side f saving t much infrmatin rather than t little. Make ntes f this investigatin in case yu are ever called upn t justify yur chices. Frm there, utline: (1) Wh is invlved r has data; (2) What data is available and relevant; (3) Why has the dispute arisen and what dcuments are invlved, (4) When did the dispute arise and hw far d yu have t g back t preserve the relevant data, and (5) Where is the data lcated electrnically and physically. This shuld be fllwed by interviews f all f the key players cnnected t the ptential claim. Take their depsitin, s t speak. This will help yu identify the dcuments which 21 Spliatin instructin nly available fr bad faith destructin. Cndrey v. SunTrust Bank f Ga., 431 F.3d 191, 203 (5th Cir.2003). Typically an inference f bad faith is nt allwed when dcuments are destryed under a rutine plicy. Vick v. Tex. Emplyment Cmm'n, 514 F.2d 734, 737 (5th Cir.1975); see als Cates v. Jhnsn & Jhnsn, 756 F.2d 524, 551 (7th Cir.1985) (declining t make inference f bad faith when dcuments were destryed accrding t rutine prcedures). 22 Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, (S.D.N.Y., 2003). 23 Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y., 2004) was the first majr case t put the idea f attrney respnsibility int the fre f e-discvery cnsideratins. Others have since fllwed. 24 Every day yu use a cmputer that has relevant infrmatin n it, yu increase the risk f lsing data. Yu ask Why des that happen if I dn t delete anything? The reasn is this: Data yu previusly deleted may still be n the cmputer. When yu press delete the cmputer des nt scrub that data ff the hard drive. It just ges t the beginning f the sectin where the data is saved and places a 0 s that the next time the cmputer needs t stre new data, the ld data may be written ver. Until new data takes its place, the ld deleted data is still accessible by smene with the right frensic cmputer skills. Page Lper Reed & McGraw, P.C.
17 need t be held and prvide a better understanding f the claim when litigatin starts. Ask wh the ther key and tangential players are (remember they will be asked this questin in depsitin). A judge will nt like it if yu utilize nly the list yu created t decide whse infrmatin t keep especially if a key player later identifies smene else in depsitin. Als ask what the key players perceive t be the key and tangential dcuments (electrnic and paper), where they are lcated, and hw have they been stred. It is apprpriate t g ver the list f paper and electrnic dcument types utlined abve as a primer, t identify all f the relevant surces f data. 25 And, dn t frget drafts f dcuments. 26 Discuss utside surces f data that may be relevant. Dcuments in the hands f auditrs, accuntants, payrll cmpanies, lawyers, r thers are within yur cntrl and therefre must be kept. If the utside surce is unaware, it may delete yur dcuments under its wn retentin plicy. Finally, inquire abut the relevant date range fr the data invlved in the dispute. At the cnclusin f the interview prcess, make sure each key and tangential player is aware f the need t retain dcuments and warn them that if they have any dubts they shuld ask befre deleting anything. Next, turn yur attentin t yur strage systems. If yu are well versed in the innerwrkings f the system, mve n t the next pint. If yu d nt knw yur system inside and ut, interview yur IT Prfessinals t gain that knwledge. When it cmes time t cllect and preserve the data, yu cannt rely upn the IT flks alne t carry ut yur wishes. Yu are respnsible fr understanding the system and verifying yur IT Prfessinals are ding what yu ve utlined. Finally, plan yur search. In the next step yu will cllect the data invlved in the dispute. T accmplish this, yu may have t utilize searches f yur system with yur IT Prfessinals. Fr example, in a race discriminatin case, yu wuld clearly want t hld all s frm the ffending party and thse ther persns invlved. Frm there, yu wuld still want t search the remainder f yur staff members t attempt t lcate relevant infrmatin utside the circle f key and tangential staff invlved. Other racial cmments, utside the scpe f the individual claim, will be relevant. Apprpriate search terms might include the basis f the discriminatin, expletives, and ther dergatry phrases. Step 2: Cllect. With yur interviews cmplete and yur search terms identified, yu are ready t start cllecting the data that will ultimately be culled by cunsel fr prductin in litigatin. Remember, the gal at this stage is t retain mre data than yu will prduce. Yu want t cast a wider net than yu will need t avid missing anything. Create repsitries fr yur paper and electrnic dcuments. Cnsider scanning paper dcuments s that they will be easier t access, catalg, and evaluate befre prductin. Make sure that thse cllecting the data understand the imprtance f their wrk. Als arrange t btain dcuments frm utside surces such as auditrs, accuntants, payrll cmpanies, attrneys frm prir matters, and ther surces that are unique t yur business. 25 Dn t assume interviewees realize the imprtance f disclsing that there is infrmatin stred n their hme cmputer r a flash drive. 26 Williams v. Sprint/United Mgmt C., 230 F.R.D. (D. Kan 2005). Page Lper Reed & McGraw, P.C.
18 It is imperative that yu and yur IT Prfessinals understand ne anther in cmpleting this task. One f the biggest surces f difficulty in creating an effective litigatin hld is misunderstanding and miscmmunicatin between wners and IT Prfessinals. When depsed by an attrney with understanding f technical aspects f cmputers r servers, IT Prfessinals have been knwn t identify additinal surces f data that business wners did nt knw abut, despite the wner s attempts t learn everything during the prcess f investigating claims s be wary! Trudging n, we ve gt t revisit the difference between accessible and inaccessible data discussed abve. 27 There is uncertainty abut whether yu have t keep inaccessible data as part f yur litigatin hld. Neither Texas state curts nr federal curts in and ver Texas have addressed whether inaccessible back-up tapes must be kept as part f a litigatin hld. 28 Fr this reasn, yu will have t keep in mind the data which exists n thse tapes in analyzing the scpe f yur hld. With the assistance f yur IT Prfessinals, make decisins abut metadata and hw it will be prtected. Metadata is data abut data as if this prcess were nt cmplicated enugh. T use an example, a wrd prcessing dcument is full f data, but the cmputer prgram always keeps data abut the dcument cnnected t it. The metadata is infrmatin abut when the dcument was last edited, what the last red-line changes were, wh wrked n it, hw lng it was pen, etc. While this infrmatin is ften nt imprtant in litigatin, it can prve imprtant in certain circumstances. Fr example, when smene alleges they created a dcument at a certain time, but did nt. The metadata wuld help prvide that infrmatin and has been knwn t prve a case all tgether. Run yur searches. Wrk with yur IT Prfessinals t run the searches fr the terms develped as part f yur investigatin. Make sure that the searches and all dcument cllectin effrts are taking place at all lcatins f yur cmpany. Failing t institute the hld at a separate ffice can be the cause f sanctins r ther penalties implemented by the curt. 29 Step 3: Fllw up. This is a shrt, but vital, step in the prcess. A litigatin hld requires cnstant attentin. Nt nly d yu have an bligatin t cllect data that exists at the time the hld ges int place, but als infrmatin that develps after the hld is put in place. Of curse, there will nt usually be a lt f new data because claims tend t invlve things that happened in the past, but yu have a duty t keep any new data. Yu must make sure the data is cllected and that all staff is regularly reminded f their bligatin t set aside infrmatin that is part f the hld. If yu fail t meet this bligatin, yu can again find yurself in the crss-hairs f the curt. In at least ne instance, a cmpany put an electrnic warning up n all staff member s cmputer each time they lgged in t remind them f the hld. This may be ver-kill, but it illustrates the pint. Keep recrds f yur fllw-up effrts and cnsider making the fllw-up reminders t staff via r ther written frm s yu will be able t shw a curt yur effrts. 27 Nte, sme cmpanies d nt have separate disaster recvery tapes and nly have accessible back-up tapes. If this is the case, there will nt be a separate need t keep disaster recvery tapes because there are nne! 28 Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y.2003) ( inaccessible data nt required t be kept in nrmal curse f business); but see Treppel v. Bivail Crp., 249 F.R.D. 111 (S.D.N.Y. 2008). 29 Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004). Page Lper Reed & McGraw, P.C.
19 Step 4: Make a Deal. 30 It is placed here because it is mst likely t happen at this juncture, but this step culd happen at any time in the hld prcess. Oppsing cunsel s appearance culd be the first time yu reasnably anticipate litigatin. Nnetheless, as sn as ppsing cunsel is invlved, strike a deal in writing n the parameters f electrnic discvery. The ptential benefits are innumerable, but certainly include: (1) pssibly allwing yu t delete data utside the scpe yu have agreed upn; (2) enabling yu t frce the ppsing party t becme respnsible fr electrnic dcuments they pssess which may benefit yur case; and (3) prviding certainty as t yur bligatins, s that yu are nt subject t the whim and mercy f a judge t determine whether yu have dne what is required. Fr yur wn prtectin, hwever, the prcess needs t be as detailed as yur litigatin hld wuld have been, r is. If yu fail t make an agreement cvering a categry f infrmatin, and subsequently delete it, yu will have serius prblems explaining it t the curt. Remember in negtiating the agreement, hwever, that a little finesse is required. If yu have fllwed my prgram, yu will knw what ppsing cunsel shuld want. Of curse, ppsing cunsel may nt be s rganized. Dn t just give up the frt! Make the ppsing party ask yu fr it. If he r she never figures it ut, yu may be ff sct-free. Utilize the fllwing as a guide in preparing the agreement: 31 What will be preserved? The cnsideratins in this area need t be as brad as yur litigatin hld. G thrugh all f the dcument categries identified abve in bth the paper and electrnic categries. Yu need t agree whse infrmatin will be prtected, including key and tangential players. Hw will the data be preserved? This is yur pprtunity t learn the ppsing party s cmputer system. Ask hw data is stred, where it is stred, wh is respnsible fr it, and hw lng it is kept. This infrmatin will be useful in determining what infrmatin yu want t ask fr and hw yu want it prduced. It als serves the purpse f allwing yu t determine whether data will be prduced n paper, saved as PDF files, r in a frmat that wuld allw smene t pen it in the riginal prgram. Remember t cnsider whether the ppsing party s infrmatin may include valuable metadata which culd be used t prve an aspect f yur case. If it might, specify that the infrmatin be prduced with metadata in its riginal r native frmat. What will be the date range preserved? Hw far back des the dispute g back? Hw far d the dcuments frm which the dispute arises g back? Culd it be that yu need different date ranges fr different types f data? Perhaps yu need wrd prcessing dcuments back t the time f the transactin and s within the last 2 years? Dn t ever agree t have an end t the date range. If, fr example, the ppsing party s staff members want t write s abut the claim while litigatin is ging n, yu dn t want t give up the pprtunity t get the data. 30 Fr the business wners reading this guide, d nt attempt this n yur wn. Have yur cunsel handle the negtiatins, but make them aware f yur desire t cnsider these pints. 31 Fr additinal guidance, review Fed. R. Civ. P. 26(f), and, mre imprtantly, its cmmentary (even in state curt cases this will be helpful). Page Lper Reed & McGraw, P.C.
20 What will the search terms be? Yu dn t want t agree t prduce every single fr a persn because it will have tw cnsequences: (1) yur attrney will have t review it and charge yu t d s (discussed belw); (2) it will cst mre mney t prduce because there are mre pages. Agree t search phrases regarding s that result in the discvery f all relevant s. Remember thugh, nt t allw the ppsing party t delete anything utside the search parameters because the dcuments they prduce may lead yu t new search terms. If yu allw them t delete this data there will be nthing left nce yu realize its imprtance. Step 5: Utilize and Prduce Data. Yu might think this wuld be the simplest step. Package up what yu ve pulled tgether and send it n. Regrettably, that is nt the case. Prducing the data may be the mst cstly and time cnsuming part f the prcess. Once the data is cllected, it shuld be reviewed by cunsel fr attrney-client, wrk-prduct, and ther privileges, in additin t ther bjectins, befre being prduced t the ppsing party. Sme cmmentatrs believe changes in rules and statutes ver the last few years eliminate sme, r the entire burden, f reviewing dcuments. I disagree. The law prvides a safe harbr fr pulling back infrmatin nly under certain circumstances; but it shuld nt be utilized as a crutch t avid dcument review. Under these claw-back r snap-back prvisins, yu can retrieve privileged infrmatin that has been inadvertently prduced. The applicable federal rule fr this is Federal R. Ev. 502(b) which gverns inadvertent disclsure and prvides that there is n waiver f privilege if: (1) the disclsure is inadvertent; (2) the hlder f the privilege r prtectin tk reasnable steps t prevent disclsure; and (3) the hlder prmptly tk reasnable steps t rectify the errr, including (if applicable) fllwing Federal Rule f Civil Prcedure 26(b)(5)(B). 32 The applicable Texas rule is Tex. R. Civ. P (d) which prvides that privileges are nt waived by prductin if: within ten days r a shrter time rdered by the curt, after the prducing party actually discvers that such prductin was made the prducing party amends the respnse identifying material r infrmatin prduced and stating a privilege is asserted. 33, 34, 35, Fed. R. Ev. 502(b) became effective in September Understandably there are n cases in Texas federal district curts r the 5 th Circuit interpreting it. 33TRCP 193.3(d) Privilege Nt Waived by Prductin. A party wh prduces material r infrmatin withut intending t waive a claim f privilege des nt waive that claim under these rules r the Rules f Evidence if--within ten days r a shrter time rdered by the curt, after the prducing party actually discvers that such prductin was made--the prducing party amends the respnse, identifying the material r infrmatin prduced and stating the privilege asserted. If the prducing party thus amends the respnse t assert a privilege, the requesting party must prmptly return the specified material r infrmatin and any cpies pending any ruling by the curt denying the privilege. Tex. R. Civ. P. 193, Cmment 4 (1999): Rule 193.3(d) is a new prvisin that allws a party t assert a claim f privilege t material r infrmatin prduced inadvertently withut intending t waive the privilege. The fcus is n the intent t waive the privilege, nt the intent t prduce the material r infrmatin. A party wh fails t diligently screen dcuments befre prducing them des nt waive a claim f privilege. This rule is thus brader than Tex. R. Evid. 511 and verturns Granada Crp. v. First Curt f Appeals, 844 S.W.2d 223 (Tex. 1992), t the extent the tw cnflict. The ten-day perid (which may be shrtened by the curt) allwed fr an amended respnse des nt run frm the prductin f the material r infrmatin but frm the party's first awareness f the mistake. T avid cmplicatins at trial, a party may identify prir t trial the dcuments intended t be ffered, thereby triggering the bligatin t assert any verlked privilege under this rule. 34 TRCP 193.3(d) has been held nt t apply t third-party discvery respnses. In re Ortun, 2008 WL (Tex. App. Hustn [14 th Dist.] 2008). Page Lper Reed & McGraw, P.C.
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