1 Kow Whe to Hold Em By Kelly E. Joes ad Ala M. Wichester Implemetig a Effective ESI Legal Hold Miimizig Risk While Esurig Compliace I today s digital world, carefully ad defesibly preservig electroically stored iformatio (ESI) is a high-stakes game. Most e-discovery risk is cocetrated i the legal hold process because of the potetial for irrevocably losig relevat iformatio. Recet America court decisios ad legislatio have show that the failure of a orgaizatio to retai electroic documets, ad to locate the iformatio whe eeded, ca cost the orgaizatio millios of dollars as well as its reputatio. I spite of uderstadig the eed for compliace, few orgaizatios are fully prepared to implemet a effective electroic legal hold. Idetifyig appropriate people, commuicatig a hold cosistetly, iterviewig custodias ad IT staff, coductig diliget iquiry about iformatio repositories, suspedig routie deletio protocols, ad implemetig a reliable collectio methodology to esure compliace with a hold directive are the commo poits of failure. This article serves as a techical ad legal guide for i-house ad outside cousel about avoidig these pitfalls ad developig a effective legal hold policy while miimizig risk to a compay from evidece spoliatio. A legal hold policy should preserve ad maitai relevat iformatio oce a compay has idetified it. Successfully maagig legal holds requires the right combiatio of people, process ad techology. Ideally, i-house ad outside cousel should work together to defie a orgaizatio s legal hold process before litigatio is aticipated, so that they do t have to do it while uder the pressure of a actual lawsuit. By clearly defiig the legal hold process, a orgaizatio ca positio itself much more favorably with the courts ad adversaries tha otherwise, ad esure that a matter remais focused o the facts of the case istead of e-discovery practices. A clearly defied legal hold process puts a orgaizatio i the best positio to egotiate a fair ad reasoable scope of discovery durig the Federal Rule of Civil Procedure 26(1) meet ad cofer coferece, because cousel ca demostrate clear uderstadig of the ESI relevat to the matter ad the potetial impact of differet hold strategies o the orgaizatio. Iformed cousel ca greatly reduce the cost, scope ad burde of a litigatio hold. The Basics: What Is a Legal Hold? A legal hold is a process withi a busiess orgaizatio that preserves by directive all documets ad tagible thigs for possible productio, whether paper or electroic, relatig to the subject of a dispute i curret or impedig litigatio. Oce a party reasoably aticipates litigatio, it must susped its routie documet retetio ad destructio policies ad implemet a legal hold to esure that certai data are maitaied itact from that poit forward. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) (Zubulake IV). A legal hold is based o the commo law duty to preserve evidece ad prevet spoliatio: a party to or a party aticipatig litigatio must retai all relevat documets i existece whe the duty to preserve begis, as well as all relevat documets created thereafter. See Chambers v. NASCO, Ic., 501 U.S. 32 (1991); Quiby v. WestLB AG, 245 F.R.D. 94, (S.D.N.Y. 2006). Spoliatio is the destructio or sigificat alteratio of evidece, or the failure to preserve property for aother s use as evidece i pedig or reasoably foreseeable litigatio. West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). Oce a legal hold directive is issued, a compay s documet-retetio policy should be suspeded to avoid spoilig relevat evidece. Ulike paper documets, for which destructio requires a overt act, such as shreddig, or simply usig a computer ca destroy electroic data. For example, eve merely turig o a computer or clickig o a file ca destroy temporary files, overwrite data or alter metadata, ivitig the suggestio that somethig has bee modified. I additio, more obvious aveues ca destroy documets, such as a automatic routie that deletes every 90 days. There are deep historic roots for a court s authority to impose sactios o a party for spoliatio. See Phoeix Four, Ic. v. Strategic Res. Corp., No. 05 Civ. 4837, 2006 WL , at *4 (S.D.N.Y. May 23, 2006). Geerally, courts require that a party brigig a spoliatio claim demostrate that: (1) the party havig cotrol over the evidece had a obligatio to preserve it at the time it was destroyed; (2) the evidece was destroyed with a culpable state of mid; ad (3) the destroyed evidece was relevat to the party s claim or defese, meaig that a reasoable trier of fact could fid that it would support that claim or defese. See, e.g., Residetial Fudig Corp. v. DeGeorge Fi. Corp., 306 F.3d 99, 107 (2d Cir. 2002); Kelly E. Joes is a associate ad Ala M. Wichester is a member of Harris Beach PLLC i New York City. Ms. Joes is a member of the firm s e-ifo sm electroic iformatio couselig ad maagemet team, which provides comprehesive documet maagemet services for both litigatio ad o-litigatio scearios. She curretly chairs the DRI Youg Lawyers Sposorship Subcommittee. Mr. Wichester is the leader of Harris Beach s e-ifo sm electroic iformatio couselig ad maagemet team. He is also a member of DRI DRI. All rights reserved. I-House Defese Quarterly Summer
2 E-Discovery NTL, Ic. Sec. Litig., 244 F.R.D. 179, (S.D.N.Y. 2007). Failure to preserve data subject to a legal hold ca result i sigificat sactios, icludig adverse iferece jury istructios, fies sometimes millios of dollars ad other costs associated with ucoverig the destructio of evidece. See, e.g., Qualcomm v. Broadcom, No.05-CV-1958, 2008 WL , at *1 (S.D. Cal. Mar. 5, 2008); Cache La Poudre Feeds, LLC v. Lad O Lakes Farmlad Feed, 244 F.R.D. 614, (D. Co. 2007); Google Ic. v. America Blid & Wallpaper Factory, Ic., No CV-5340-JF, 2007 WL , at *2 (N.D. Cal. Jue 27, 2007). As such, it is essetial that a orgaizatio s legal persoel, IT staff ad outside cousel cosult to establish a effective legal hold protocol, with triggerig, otificatio ad preservatio stadards tailored to the circumstaces ad risk ivolved. Ate-Up! Determie Circumstaces That Trigger a Legal Hold Directive As oted, observig a legal hold is a commo law duty that is triggered whe reasoable aticipatio of litigatio arises. See Zubulake IV, 220 F.R.D. at 217. Reasoable aticipatio of litigatio arises whe a orgaizatio is o otice of a credible threat that it will become ivolved i litigatio or aticipates takig actio to iitiate litigatio. See Kroish v. Uited States, 150 F.3d 112, 126 (2d Cir. 1998). Ad while the duty to preserve relevat iformatio is certaily triggered whe a complait or subpoea is served, courts have foud that the duty to preserve may arise before that poit. See Hyix Semicoductor, Ic. v. Rambus, 591 F. Supp. 2d 1038, 1061 (N.D. Cal. 2006). However, determiig whe a duty to preserve is triggered is very fact-specific. Determiig whether a compay could reasoably aticipate litigatio is based o a good-faith, reasoable evaluatio of relevat facts ad circumstaces, as kow at the time of its decisio. See, e.g., Broccoli v. Echostar Comm Corp., 229 F.R.D. 506 (D. Md. 2005). Some factors to cosider whe determiig whether litigatio is reasoably aticipated could iclude: the ature of the complait; the party makig the claim; the busiess relatioship, if ay, betwee the parties; whether the party makig the claim is kow as litigious; the likelihood that data related to a claim will be lost or destroyed; or whether relevat records are beig retaied for aother reaso. See, e.g., The Sedoa Coferece Workig Group o Electroic Documet Retetio & Productio, The Sedoa Coferece Commetary o Legal Holds: The Trigger ad the Process, Determiig whe a duty to preserve is triggered is very fact-specific. (Aug. 2007) (Sedoa Coferece). Oce litigatio is reasoably aticipated, outside cousel must udertake certai duties, icludig immediately idetifyig the eed for, implemetig ad maagig the scope of a legal hold. Iside ad outside cousel should work together to implemet a compay s legal hold policy ad make good-faith efforts to esure preservatio by tailorig the scope of the relevat iformatio, idetifyig the key players ad iformatio repositories, issuig a legal hold ad implemetig a preservatio pla. The Jackpot Develop ad Maitai Policies ad Processes Every compay should have a comprehesive, regularly audited documetretetio policy. The policy should set forth cosistet ad compay-wide procedures for uiform, timely dispositio of documets both electroic ad paper. Adoptig a legal hold process, as part of a orgaizatio s overarchig documetretetio policy, ad defiig a triggerig, otificatio ad preservatio decisiomakig process is key evidece that demostrates reasoableess ad good faith i meetig preservatio obligatios. Outside ad i-house cousel should work together to documet both a orgaizatio s geeral legal hold process ad its steps to esure that a compay has effectively implemeted specific legal holds. Orgaizatios should documet the legal hold process i a simple ad practical way, i a maer that the orgaizatio ca readily defed. At the outset of developig a legal hold process, outside cousel must become familiar with a compay s documet- retetio policy ad IT systems ad develop a solid workig relatioship with a orgaizatio s IT departmet, i collaboratio with i-house cousel. Case law uderscores the eed for outside cousel to become familiar with a cliet s electroic iformatio ad documet-retetio architecture. See Phoeix Four, 2006 WL , at ** Cousel should review a orgaizatio s retetio program to esure that it is curret, applies to all employees i all locatios ad is regularly moitored ad eforced. A good documet-retetio policy with a pla about for how to address potetial legal holds coupled with vigilat eforcemet, will prove ivaluable i evaluatig preservatio efforts i litigatio ad may be a compay s best defese agaist claims of spoliatio of evidece. The particulars of a legal hold process will vary amog differet orgaizatios based o a multitude of factors; however, irrespective of variatio, idividuals withi a orgaizatio should receive traiig about how to follow a compay s procedure. The Sedoa Coferece guidelies suggest that a effective legal hold: Pipoits idividuals most likely to have germae iformatio Esures those idividuals receive a order to preserve iformatio Issues a hold directive to these idividuals so that they receive actual, comprehesible ad effective otice of the iformatio preservatio requiremet Gives the otice to idividuals i writig Idetifies the particular iformatio that idividuals must preserve ad specifies how log they must observe the hold At itervals will be reassessed Distributed agai, if ecessary, as revised or as origially crafted. See Sedoa Coferece, Guidelie 8 at 14. Importatly, legal hold otices, subsequet otices ad otice remiders should describe the matter at issue, provide specific examples of the types of iformatio at issue; idetify potetial sources of iformatio, ad iform recipiets of their legal 40 I-House Defese Quarterly Summer 2009
3 obligatios, icludig the potetial pealties for o-compliace. Sedoa Coferece, Guidelie 8 at 15; see also Samsug Electroics Co. Ltd., v. Rambus, 439 F. Supp. 2d 524, 565 (E.D. Va. 2006). The otice should also iform recipiets of a cotact perso if they have questios or eed more iformatio. Orgaizatios should desigate resposibility to oe or more idividuals withi the legal departmet for dissemiatig the legal hold otice, aswerig questios ad overseeig compliace with the otice. A well maaged ad documeted preservatio ad legal hold policy assures compliace with a legal hold otice. Further, it helps establish a reasoable ad goodfaith effort to comply with preservatio duties, which will help a compay to maitai safe harbor stadig uder Fed. R. Civ. P. 37(e): it will be able to demostrate a good faith effort to preserve all potetially relevat ESI. After preservatio is implemeted, cousel should establish a collectio methodology so that resposive data ca be sequestered ad securely stored prior to processig, reviewig ad productio. The collectio methodology should cotemplate the ultimate form of productio. However, the collectio process caot begi util outside cousel has had a Rule 26 meet ad cofer coferece with opposig cousel to defie that ed poit. Recetly, case law has made the distributio of a legal hold otice a shared resposibility of both cousel ad the cliet. See, e.g., Zubulake IV, 220 F.R.D. at 217; Phoeix Four, 2006 WL , at *16. Distributig a hold otice via is geerally acceptable, ad it is prudet to either track receipt automatically or eve better, to request that recipiets ackowledge receipt by sigig ad returig certificatios that they have read the hold otice ad uderstad the obligatios that it outlies. See Heg Cha v. Triple 8 Palace Ic., No. 03CIV6048, 2005 WL , at *16 (S.D.N.Y. Aug. 11, 2005) (holdig that cousel has a obligatio to moitor compliace with a compay s preservatio obligatios). This is a good-faith meas of verifyig that recipiets uderstad their duty to preserve ad will provide evidece of good faith should iformatio be iadvertetly lost. Give the ature of ESI, hold otices should also be distributed to IT, records- maagemet ad other potetially kowledgeable persoel, i additio to those idividuals idetified as documet custodias. As metioed, a compay should periodically reissue hold otices. May compaies sed quarterly remiders or issue additioal remiders whe a major reorgaizatio or reductio i force i the compay occurs, particularly i the IT departmet. Furthermore, it is imperative to properly execute, moitor ad documet the legal hold process to establish good faith durig the etire legal hold otice life cycle, from the day it is first issued through the day it eds. Oce a compay has decided to execute a legal hold, the followig steps should be implemeted: Draft the Notice. Articulate, i writig, the scope of the legal hold ad the specific actios ad istructios that custodial recipiets eed to take. Distribute the Notice. Sed the legal hold otice to recipiets istructig them o how ESI is to be preserved. Track ad Audit Resposes. Take appropriate steps to esure iformatio custodias ackowledge ad will comply with the hold, ad follow up with phoe calls or eve i-perso meetigs if idividuals fail to ackowledge hold otice receipt. Moitor ad Maitai the Notice. Review ad revise the legal hold periodically. Throughout the legal hold life cycle, a orgaizatio should moitor chages. If a hold is revised, a compay must reissue a ameded otice citig the chages. Eve if a hold is ot revised, a compay should sed periodic remiders. I both istaces, outside ad i-house cousel should coduct compliace audits to make sure that the process is defesible from start to fiish. Oce a compay develops a legal hold pla, the ext step is to implemet ad maage the preservatio process. Followig is a step-by-step model for determiig electroic storage iformatio preservatio. 1. Defie the ature, scope ad total value of the litigatio; 2. Idetify potetial iformatio custodias ad data repositories relevat to the litigatio; 3. Idetify a poit perso i the compay IT departmet to assume resposibility for discovery ad potetially testify; 4. Issue legal hold otices to each record custodia ad susped routie automated deletio for each repository; 5. Evaluate the accessibility of each data source; 6. Evaluate the relevace of each repository; 7. Determie cost, operatioal impact ad methods for istitutig a legal hold; 8. Develop data collectio methodology; 9. Prioritize data collectio to miimize the risk of relevat data loss while idetifyig solutios to potetial data collectio challeges from, for istace, ecrypted or password protected data; 10. Idetify ad implemet reasoable methods to prevet the iadvertet destructio of potetially relevat materials, other tha suspedig autodeletio; 11. Prepare for the meet ad cofer coferece with opposig cousel uder Fed. R. Civ. P. 26(f)(2) to discuss preservatio ad the ultimate productio of resposive documets; ad 12. Craft a agreemet of preservatio order, which clearly defies the measures a orgaizatio will take to satisfy its preservatio obligatio. Fially, ideally i advace of actual litigatio, a orgaizatio should cosider puttig together a team with represetatives from the legal departmet, IT, records maagemet ad corporate compliace to develop ad implemet a actio pla for litigatio ivolvig electroic discovery. This team will have resposibility for keepig the legal departmet apprised of techological, procedural or staff chages that impact documet-retetio policies, icludig legal holds already i place due to preexistig litigatio. High-Stakes? Tailor the Preservatio Scope to the Risk Level As oted, oce a threat of litigatio is established, a compay s duty to preserve arises ad it should take reasoable steps to idetify ad maitai the evidece that a com- I-House Defese Quarterly Summer
4 E-Discovery pay kows, or reasoably should kow, may be relevat to pedig or aticipated litigatio. See Zubulake IV, 220 F.R.D. at 217. As with legal hold triggers, there is o oe-size-fits-all way to implemet a legal hold. A orgaizatio must approach implemetatio of a legal hold i light of the particular documets ad iformatio i their possessio ad the ature of the litigatio i which they expect to be ivolved. With mass torts or govermet ivestigatios, which ivolve may aspects of a orgaizatio s busiess, a litigat may be held to broader ad more costly preservatio obligatios tha with a slip-ad-fall lawsuit with a relatively small amout i cotroversy. Similarly, broader approaches to preservatio may apply to key players tha to secodary or peripheral witesses. Zubulake IV, 220 F.R.D. at 217. Ufortuately, case law offers little directio about tailorig the boudary of the preservatio process. I Zubulake IV, Judge Shira A. Scheidli oted that oce a corporatio is threateed with litigatio, it does ot have boudless resposibility to preserve every shred of paper, every or electroic documet, ad every backup tape. Id. The preservatio boudary cosidered reasoable will deped o a compay s curret documet-retetio policies. For example, i Zubulake IV, the court opied: As a geeral rule, that litigatio hold does ot apply to iaccessible backup tapes (e.g., those typically maitaied solely for the purpose of disaster recovery), which may cotiue to be recycled o the schedule set forth i the compay s policy. O the other had, if backup tapes are accessible (i.e., actively used for iformatio retrieval), the such tapes would likely be subject to the litigatio hold. Zubulake IV, 220 F.R.D. at 218. The bechmark is that parties are geerally required to preserve what is reasoable uder the particular circumstaces. I Zubulake V, Judge Scheidli ackowledged that, while certai precautios esured preservatio, those precautios may ot be eough (or may be too much) i some cases. Zubulake v. UBS Warburg, 229 F.R.D. 422, (S.D.N.Y. 2004) (Zubulake V). Guidelie 7 i the Sedoa Coferece also provides some useful isight ito this task: [i] determiig the scope of iformatio that should be preserved, the ature of the issues raised i the matter, experiece i similar circumstaces ad the amout i cotroversy are factors that may be cosidered. I geeral, documetatio of a legal hold policy, ad With mass torts or govermet ivestigatios a litigat may be held to broader ad more costly preservatio obligatios the process to implemet that policy, will help protect both a compay ad cousel. A adequately described legal hold process will help thwart a opposig party s efforts to claim that the preservatio terms raise a problem. Defiig the scope of a hold is also a art. While the geeral rule is that parties may obtai discovery o ay matter relevat to the claims or defeses ivolved i a case, the rules offer limits if data sources are ot reasoably accessible due to udue cost or burde. See Fed. R. Civ. P. 26(b) (2)(B). However, eve if the data sources are deemed ot reasoably accessible, a court may still order productio with a cost-shiftig compoet, ad oe of this mitigates the separate ad higher duty to preserve the iformatio. Fed. R. Civ. P. 26(b)(2). A effective data map, discussed below, will assist cousel whe tasked with determiig whether data sources are ot reasoably accessible. Whe cofroted with this issue, cousel should cosider the potetial cost ad the burde ivolved i restorig or samplig iaccessible data ad the amout at stake i the litigatio. Discuss these factors with opposig cousel at the Rule 26 meet ad cofer coferece. I-house cousel ad IT persoel may wat to be available durig this coferece to assist outside cousel, depedig o the size ad complexity of the case, the amout i cotroversy, the locatio of the litigatio ad the volume of potetially relevat data. The itrisic problem with legal holds is that, while it is easy to metio these broad priciples or to criticize a litigatio hold after relevat iformatio is lost, it is much harder to implemet a legal hold i practice. Today s compaies house thousads of terabytes of iformatio ad that iformatio is ot always orgaized i eat packets relevat to a give litigatio. Accordigly, this puts tremedous shared burde o both i-house ad outside cousel to idetify ad preserve the myriad of ESI repositories o easy task particularly if cousel are ot adept i moder computer architecture. To address this, may compaies have created a iteral positio of discovery czar. This perso may be part of the RM, IT, or legal departmet, but he or she has broad IT traiig, passwords to all databases ad servers ad admiistrator rights to every compay server. Similarly, a growig umber of law firms are creatig separate e- discovery practice groups that specialize i preservig, collectig, procurig ad producig ESI, represetig IT professioals at depositios ad defedig agaist spoliatio motios. Idetify Relevat Players ad Ivolved Idividuals Whe litigatio arises, lawyers must quickly idetify the iformatio relevat to the issues ad claims, ad the key players or custodias likely to possess that iformatio. Cousel should commuicate face-to-face with key players to make sure that they uderstad the seriousess of the preservatio obligatio ad iquire ito the custodia s persoal practices for documet maagemet ad retetio. I additio, whe coductig iterviews with potetial custodias, cousel should determie ad record where the custodias store relevat material to assist i the collectio process. Cousel should also commuicate with the data gatekeepers, such as IT persoel, to lear about system-wide backup procedures ad a compay s recyclig or data overwritig policy. See Zubulake V, 229 F.R.D. at 422. A sigificat amout of potetially relevat computer data is routiely destroyed 42 I-House Defese Quarterly Summer 2009
5 by automatic subrouties. Thus, legal persoel should idetify ad establish commuicatio with IT persoel to esure that the right IT persoel receive all legal hold letters ad are prepared to heed these letters promptly. A compay may eed to modify subrouties or suspedig them, modify deletio rights o users or shared drives to prevet deletio, or chage deletio or modificatio rights for iformatio repositories, such as SharePoit, or documet-maagemet systems. It is importat to talk to the IT departmet to lear about the differet systems that create, maitai ad destroy electroically stored iformatio, so that at the outset of every case, cousel fully uderstad a compay s ESI systems, how to access that iformatio, what backup-tape systems are i place, ad eve how iformatio from employees PDAs ad voice mail is stored, archived ad deleted. Ufortuately, cousel ofte develop uderstadig of a orgaizatio s data systems after otice of litigatio triggers the duty to preserve ad while a legal hold process is developed. This leads to costly, hastily assembled solutios, which geerate ucertaity about the effectiveess of the legal hold ad respose efforts. Prudet i-house cousel should cofer with outside cousel, become familiar with IT persoel ad key cotacts i advace of litigatio ad work with them to develop a orgaized legal hold policy that ca be implemeted whe ecessary. Kow What to Keep Idetify Relevat Iformatio Repositories I determiig what ESI eeds to be preserved, cousel should idetify potetial issues relevat to a matter, germae busiess records ad players ad where this iformatio resides withi a eterprise. Whe determiig the scope of ESI to preserve, cousel should cosider all of a compay s electroically stored iformatio, icludig ESI i far-flug offices, o servers maitaied by third parties off-site ad eve i the computer files of cotract employees. Additioally, cousel must address the differeces betwee paper documets ad ESI. Some of the major differeces are that ESI: (a) presets a eormous volume ad duplicability; (b) has dyamic ad chageable cotet; (c) cotais metadata; (d) is eviromet-depedet ad obsolescet; ad (e) is potetially highly searchable ad dispersible. Most importatly, havig a effective cotet map or data map that describes attributes of data repositories withi a Devise Strategy to Esure a Hold Is Observed Years ago the iformatio sources a compay had to cosider were limited to perhaps large boxes of paper documets. Now, a orgaizatio must cosider computers, s, servers, thumb drives ad PDAs. Thus, it is importat to give specific istructios to the recipiets of a legal hold about how to preserve ad avoid alterig data ad metadata, if relevat to a suit. As metioed, a orgaizatio must demostrate it has take steps to esure the itegrity of all iformatio uder a legal hold. However, there is o sigle stadard that govers how to implemet the preservatio obligatio. There are three strategies that orgaizatios will wat to cosider. Preserve i Place. This strategy preserves ESI i its ative, routie course of busiess data repository. It locks the data, prevetig user modificatio, for example, by chagig a file to readoly, or suspeds routie destructio protocols, such as a auto-purge cycle or retetio-dispositio process. The beefit of a preserve i place strategy is that it does ot require a compay to make copies. Copyig files ca icrease storage costs ad iformatio- maagemet complexity. O the flip side, preservig files i place may iterfere with a orgaizatio s day-to-day busiess operatios ad may ot be practical if the litigatio is expected to be log-term, requirig lockdow of files for years. Quaratie Files. A orgaizatio ca collect ESI by cofiscatig the physi It is importat to give specific istructios to the recipiets of a legal hold about how to preserve ad avoid alterig data ad metadata. orgaizatio, icludig the types of data, how iformatio is govered ad where related iformatio may be copied, is extremely valuable. A compay s data map should serve as a up-to-date resource that sets out sigificat details of a orgaizatio s differet active data-creatio ad storage systems , istat messagig, voice mail, etwork storage ad file servers, list of applicatio ad file types, workstatio distributios, remote user setup ad distributio of mobile devices ad backup protocols for each system. A data map should also iclude the ames ad roles of key data gatekeepers the IT ad records-maagemet persoel who maage ad cotrol the documet creatio ad destructio techologies. Oce the preservatio approach has bee determied, a orgaizatio eeds to cosider which techology ad software it will use to maage the legal hold process. Whe choosig a system, a compay should cosider the (a) probable volume of otices; (b) aticipated scope of otices; (c) predicted complexity of otices; ad (d) a orgaizatio s culture ad maturity to use the system to cotrol ad adhere to process. May solutios exist for maagig the legal hold process, ad are beyod the scope of this article. I geeral, types are: Ad Hoc. Ca be tailored to meet the eeds of a particular matter (e.g., exposure, veue). Homegrow. Is relatively iexpesive to develop, quick to deploy ad requires miimal traiig. Dedicated Systems. Are commercially built ad maitaied scalable systems that provide automated workflow ad templates. These offer flexibility ad accessibility, greater itegratio with HR, ad other systems, ad offer solid reportig ad maagemet cotrols. Auxiliary Systems. Are tightly itegrated with primary systems, such as reportig. I-House Defese Quarterly Summer
6 E-Discovery cal media where files are stored. It may impoud hard drives, servers, workstatios, laptops ad ay other media cotaiig the ESI targeted for preservatio i respose to the litigatio or ivestigatio. Oce a compay has physical possessio of the media, however, it still must fid a place to store it. Quaratiig media also takes it out of productive use, ad typically, a compay must purchase replacemet media to avoid disruptig routie busiess processes. Copy Files. A orgaizatio ca collect to preserve ESI to create defesible copies of the evidece. Legal or a outside service provider ca work with IT persoel to make copies of the files or image etire disk drives. Oce that is completed, a compay ca segregate ad store the files i a protected repository while preservig the metadata carefully. Storage costs ca also be a issue, but this is a commo method used i today s litigatio-respose strategies. Check. Coduct Due Diligece ad Establish a Auditig Mechaism to Esure Compliace Cousel has a duty to follow up o a hold otice, make reasoable efforts to idepedetly verify that the hold directive has bee followed ad establish that the relevat ESI has bee preserved ad produced. See Cache La Poudre Feeds, 244 F.R.D. at 636 (fidig that while timig of hold otice was acceptable, defedat s i-house ad outside cousel was a fault for the procedure chose to preserve ad collect the ESI ad for the poor follow-up to the hold otice). This duty s premise is that while istitutig a legal hold may be a importat first step i the discovery process, the obligatio to coduct a reasoable search for resposive documets cotiues throughout the litigatio. See Fed. R. Civ. P. 26(e)(2) (statig a party is uder a duty seasoably to amed discovery resposes if the party lears that the respose is i some material respect icomplete or icorrect ad if the additioal or corrective iformatio has ot otherwise bee made kow to the other parties durig the discovery process or i writig ). Cousel retais a ogoig resposibility to take appropriate measures to esure that a cliet has provided all available iformatio ad documets that are resposive to discovery requests. Thus, compliace with a legal hold by affected employees, key custodias ad cousel is a ogoig process, ad moitorig is a must. Determiig ecessary moitorig steps depeds o the facts of each particular case. However, it is importat to make use of tools such as follow-up remiders to a compay s employees, as well as to periodically reissue a legal hold directive to those ivolved, as metioed above. Just as it is importat that a orgaizatio selects a group of legal or compliace employees to take resposibility for makig sure legal hold otices are dissemiated to those affected ad to aswer questios, it is importat that a compay moitor the hold process. See Sedoa Coferece, Guidelie 10. As previously discussed, a legal hold is oly effective if all the relevat players are otified ad cotiue to cooperate. However, gettig the word out ad esurig that otificatios have bee read, accepted ad complied with, ca be a tricky, timecosumig task. Attoreys ca streamlie this process by trackig otice receipt ad cofirmatios (either by paper or electroically) ad usig a tickler system to implemet a pre-established schedule to sed remider otices. It is prudet to schedule frequet otice remiders to esure compliace ad to establish a strog, goodfaith compliace argumet to preset to a court. Some tools to cosider may iclude requirig ogoig certificatios from custodias, imposig egative cosequeces for ocompliace ad implemetig audit ad samplig procedures. Products exist to assist with these efforts. These products electroically moitor failure to receive a cofirmatio ad trigger a alert to the moitorig attorey to spur follow-up. These tools ca be particularly helpful with large-scale litigatio. Further, most legal hold maagemet software iclude otificatio ad follow-up features, as well as a electroic log, ad the efficiecy of this type of automatio ad documetatio ca be sigificat. Kow Whe to Walk Away Establish a Reasoable Timelie for Termiatig the Hold Orgaizatios must commuicate with all recipiets of the origial legal hold, ad with all idividuals who received subsequet otices, whe a obligatio to preserve has bee lifted. See Sedoa Coferece, Guidelie 11. Whe developig a legal hold process, a orgaizatio should iclude procedures for the release of the iformatio subject to a hold oce that orgaizatio is o loger obligated to preserve the iformatio. There are may legal hold automatio software programs that ca perform custodia, system ad data cross-checkig to esure that the iformatio beig released is ot subject to ay other holds. I additio, orgaizatios also may wish to coduct period audits to esure that iformatio is ot uecessarily retaied. Coclusio Implemetig a legal hold is ot a simple game. It presets both huma ad techical challeges. Uderstadig the problems may help oppose the admissio of harmful records, avoid claims of spoliatio ad obstructio of justice ad exploit the carelessess of adversaries. Developig a legal hold process as a compoet of a orgaizatio s overall documet- retetio policy is essetial. Most importatly, streamliig ad documetig a orgaizatio s legal hold procedures helps to esure that iformatio subject to a preservatio obligatio is, i fact, preserved. To develop a effective legal hold process, a orgaizatio must provide traiig to busiess, legal, IT ad recordsmaagemet persoel about policies ad procedures. Whe litigatio is aticipated, cousel, both i-house ad outside, should work closely with the orgaizatio s IT ad records maagemet staff to esure the successful preservatio ad collectio of relevat ESI. Because either litigatio or electroic discovery is likely to go away, but rather will oly become more complex ad difficult as ew techologies aboud, the sooer legal hold policies ad procedures are defied, the better off orgaizatios will be. 44 I-House Defese Quarterly Summer 2009
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