The Effective Internal Litigation Hold Letter

Transcription

1 A Idispesable Tool The Effective Iteral Litigatio Hold Letter By Mark S. Sidoti ad Reée L. Moteye I the age of e-discovery, with sigificat amedmets to the Federal Rules of Civil Procedure ad court opiios beig reported almost daily imposig sactios o both parties ad cousel for e-discovery trasgressios, all attoreys must be familiar with ad ready to advise their cliets o the litigatio hold letter. A litigatio hold letter has become the shorthad I fact, the issues of the effective litigatio hold i the electroic age were brought to the forefrot almost 10 years ago with the semial decisio i the Prudetial Sales Practices case. I re Prudetial Is. Co. of Am. Sales Practices Litig., 169 F.R.D. 598 (D.N.J. 1997). I that case, which arose out of a policyholder class actio, Judge Alfred Woli etered a order early i the case requirig all parties to preserve all documets ad other records relevat to the litigatio. Despite this order, documets were destroyed at four Prudetial offices, largely because the litigatio hold order issued by Prudetial maagemet was mishadled. While Prudetial maagemet had distributed documet retetio istructios to agets ad employees via , some employees lacked access to e- mail ad others routiely igored it. Seior Prudetial executives ever directed distributio of the court s order to all employees. As a result, outdated sales practices records amog the key documets i the case were destroyed i at least four Prudetial offices. I a holdig that ow seems far ahead of its time, the court foud that Prudetial lacked a clear ad uequivocal documet preservatio policy, iferred that the lost materials were relevat ad would have reflected egatively o Prureferece to a letter directig a party to segregate ad protect from destructio certai documets ad data that are, or arguably may be, relevat to a threateed or pedig litigatio, regulatory ivestigatio or audit. Litigatio hold letters ca be directed to ay perso or etity that is obligated to provide materials i the discovery or ivestigatory process. They most typically arise i the litigatio cotext ad, i that cotext, ca be set by a compay or its attoreys to its ow employees, its adversary or third parties who are suspected to possess or cotrol relevat iformatio. These are sometimes called iteral litigatio hold letters. This article will discuss the essetial elemets of the effective ad well-timed iteral litigatio hold letter. The explosive developmets i electroic discovery over the past several years, icludig the adoptio of local rules i umerous jurisdictios, the expoetial icrease i e-discovery opiios from state ad federal courts ad the ow immiet Federal Rules, might lead some to coclude that preservatio obligatios are a recet cocer ad ew burde for the practitioer. Of course, they are ot. The Federal Rules ad may regulatory bodies have log required that parties ad their employees i possessio of relevat evidece i ay form take care to preserve that evidece. Fed. R. Civ. P. 26(a)(1), 33, 34, 45; The Sedoa Priciples: Best Practices, Recommedatios & Priciples for Addressig Electroic Documet Discovery 1 (Sedoa Coferece Workig Group Series 2004); Sedoa Coferece, The Sedoa Guidelies: Best Practice Guidelies & Commetary for Maagig Iformatio & Records i the Electroic Age, available at www. thesedoacoferece.org. Mark S. Sidoti is a director i the New York City office of Gibbos, Del Deo, Dola, Griffiger & Vecchioe where he chairs the firm s iteral Electroic Discovery Task Force ad its Iformatio Maagemet ad E- Discovery practice team. Mr. Sidoti frequetly advises cliets o documet retetio ad E-Discovery matters, lectures to orgaizatios ad participates i semiars ad symposia o these issues. He is the membership chair of DRI s Electroic Discovery Committee. Reée L. Moteye is a associate at Gibbos i the firm s Newark, New Jersey, office ad a member of the firm s iteral Electroic Discovery Task Force ad its Iformatio maagemet ad E-Discovery practice team. Both authors are certified i E-Discovery Best Practices DRI. All rights reserved. I-House Defese Quarterly Witer 2007

2 E l e c t r o i c D i s c o v e r y detial ad, imposed a oe millio dollar sactio. The effects o Prudetial were far more oerous, as this rulig ultimately lead to a revampig of the compay s documet retetio ad litigatio hold policies that cost the compay millios. (Oe could argue, however, that this restructurig has saved the compay utold millios i litigatios costs ad potetial sactios over the years). Perhaps the most importat lesso leared from Prudetial aside from the obligatio to preserve is that seior maagemet caot treat this obligatio lightly or delegate it to lower level maagemet ad wash their hads of the issue. As Judge Woli held, oce the court etered its order to preserve relevat documets, it became the obligatio of seior maagemet to iitiate a comprehesive documet preservatio pla ad to distribute it to all employees. Sice Prudetial, umerous courts, icludig the oft-cited Zubulake opiios, have repeatedly drive this poit home. Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. May 23, 2003) ( Zubulake I ); Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. July 24, 2003) ( Zubulake III ); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. Oct. 22, 2003) ( Zubulake IV ); Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. July 20, 2004) ( Zubulake V ); Rowe Etertaimet, Ic. v. The William Morris Agecy, Ic., 205 F.R.D. 421 (S.D.N.Y. 2002); Mosaid Techs. Ic. v. Samsug Elecs. Co., 348 F. Supp 2d 332 (D.N.J. 2004). The Sedoa Priciples, which have become respected guidace for attoreys ad courts i the area, have cofirmed that [t]he obligatio to preserve electroic data ad documets requires reasoable ad good faith efforts to retai iformatio that may be relevat to pedig or threateed litigatio. The Sedoa Priciples, Priciple 5. If well timed, carefully crafted ad properly eforced, the litigatio hold letter becomes the corerstoe of these required good faith efforts. Its importace, therefore, caot be overstated. Timig of the Litigatio Hold Letter Before discussig the format of a effective litigatio hold letter, proper timig of the letter should be addressed. Agai, while the Federal Rules have always implicitly, if ot explicitly, embodied this priciple, the obligatio to preserve relevat documets ad data whe litigatio is either cotemplated or a reality has take o ew meaig of late, particularly sice the detailed guidace provided by the Zubulake decisios. I Zubulake, Judge Shira Scheidli restated the geeral obligatio The trigger evet for issuig a effective litigatio hold letter ofte occurs prior to the filig of the lawsuit. i the cotext of a case ivolvig sigificat amouts of electroic data much of which predated the filig of the complait i that wrogful termiatio case by several years. I sum, Judge Scheidli reiterated that The obligatio to preserve evidece arises whe the party has otice that the evidece is relevat to litigatio or whe a party should have kow that the evidece may be relevat to future litigatio.. While a litigat is uder o duty to keep or retai every documet i its possessio... it is uder a duty to preserve what it kows, or reasoably should kow, is relevat i the actio, is reasoably calculated to lead to the discovery of admissible evidece, is reasoably likely to be requested durig discovery ad/or is the subject of a pedig discovery request. Zubulake IV at (iteral citatios omitted). The court emphasized that this obligatio does ot mea that merely because oe or two employees cotemplate the possibility that a fellow employee might sue does ot geerally impose a firm-wide duty to preserve. Zubulake IV, at 217. The aalysis, however, will always be made o a case by case basis, with a focus ot oly o the quality ad quatity of the evidece establishig otice of potetial litigatio, but the relevace of the compay employees who are o otice. Id. (holdig that the relevat people aticipated litigatio almost oe year before the litigatio was filed, ad several moths before plaitiff filed her EEOC complait). Thus, if the oe or two employees who express documeted cocer regardig the potetial for a termiated employee to sue (or a itet to sue that employee, such as i a restrictive coveat case) are the compay chairma ad its head of huma resources, it is clear that the obligatio to preserve would arise at a date precedig the filig of the lawsuit. Similarly, if lower level persoel exchage s documetig a competig busiess express ad specific itet to sue their compay, the obligatio may arise at that time. I Zubulake, the court held that existig s ad testimoy clearly established that relevat UBS persoel were acutely aware of the potetial for Ms. Zubulake to brig a employmet-related claim very shortly after her termiatio, ad log before her claim was filed. This determiatio formed the foudatio for the court s holdig that key evidece was willfully spoliated, leadig to a adverse iferece fidig ad other sactios. The key lesso is that the trigger evet for issuig a effective litigatio hold letter ofte occurs prior to the filig of the lawsuit or the iitiatio of a formal ivestigatio. Importat compay persoel, icludig departmet heads, should be more vigilat tha ever i alertig i-house attoreys or outside cousel to threats of legal actio, or the aticipated eed to pursue a remedy through legal actio, so that the critical trigger dates are recogized ad hold procedures iitiated. Similarly, compay officers should be aware that documets that discuss the potetial for defedig agaist or brigig a claim will ofte trigger the obligatio to iitiate the preservatio process through a iteral litigatio hold letter. Essetial Elemets of the Effective Iteral Litigatio Hold Letter Oe commetator has defied the litigatio hold letter as: a writte directive to all potetially relevat persoel of a compay advisig them that there is a specific subject mater which has resulted or is likely to 10 I-House Defese Quarterly Witer 2007

3 result i litigatio, to describe that subject matter, ad the people ivolved i it, i sufficiet degree to iform the recipiets of this commuicatio of the true ature of the actual or aticipated dispute, ad the to specifically advise them to both locate ad save all relevat paper documets, s, ad ay other items that may be cotaied i the compay s computer system. Timothy J. Hoga, The Iteratioal ad Domestic Implicatios of Electroic Discovery o Litigatio ad Busiess Practices, Iteratioal Legal News, vol. 2, at 7 (Jue 10, 2005). While this is a effective workig defiitio, iteral litigatio hold letters certaily ca ad should vary with the circumstaces of the presetig trigger evet. Compaies should resist the temptatio to craft a form letter to be used i all circumstaces with a mere modificatio of the Re: lie. The letters must be read ad uderstood ot oly by employees but perhaps adversaries ad the court whe the matter evolves ito litigatio. (The litigatio hold letter itself, while arguably a privileged documet, may itself be discoverable. Cf. Rambus Ic. v. Ifieo Techologies AG, 220 F.R.D. 264, , (E.D. Va. March 17, 2004) (supported o the grouds of spoliatio ad the subject matter privilege waiver rule, defedat moved to compel productio of documets related to the plaitiff s documet retetio, collectio, ad productio of documets ); Kigsway Fiacial Services Ic. v. Pricewaterhouse-Coopers LLP, 2006 WL (S.D.N.Y. May 10, 2006)). The key is to craft a letter that maximizes compliace ad thereby reduces the risk of evidece destructio. The followig essetial elemets, reflected i the sample letter (Exhibit A o page 12), should be icluded i every iteral litigatio hold letter. Sed It from the Top Particularly i the corporate eviromet, the seder of the message is ofte as importat as the message itself. Litigatio hold letters should be set by high level corporate officers such as the compay Chairma, Chief Operatig Officer or Geeral Cousel. The primary seder should carbo copy other high level offices (e.g., Geeral Cousel should carbo copy the Chief Executive Officer). This iclusio seds a importat message to the addressees ad other future recipiets, like adversaries ad the court, that this obligatio is recogized as importat by the highest levels of the compay ad that the compay maagemet has bought i to the process ad edorses it. Of course, employees aturally give greater attetio to directives from compay officers ad will thus be iclied to take the process more seriously ad uderstad their roles. As Prudetial made clear, this obligatio caot be delegated i ay evet. The litigatio hold letter provides compay leaders the opportuity to recogize ad accept that obligatio. The Sedoa Priciples, Commet 5.c.; Cf. I re Prudetial Is. Co. of Am. Sales Practices Litig., 169 F.R.D. 598, 615 (D.N.J. 1997); see also Dais v. USN Commuicatios, Ic., No. 98 C 7482, 2000 WL , at *38 41 (N.D. Ill. Oct. 20, 2002) (circumstaces of the case idicated isufficiet ivolvemet of maagemet i proper oversight ad delegatio of preservatio resposibilities). Defie the Corporate Audiece While the court i Prudetial poited out the risk of isufficiet dissemiatio of litigatio hold directives, it is importat to recogize, particularly whe larger corporatios are ivolved, that litigatio hold letters eed ot ecessarily be directed to all employees. I may istaces, with iput from various well placed leaders, a thorough uderstadig of the scope of the threat or iteded legal actio ad a detailed kowledge of the compay s computer ifrastructure ad data retetios policies, compaies ca safely limit the hold directives to those employees ad departmets that could possibly have access to relevat iformatio. Limitig the umber of recipiets reduces sigificat waste of corporate resources, prevets the compay-wide release of ofte very sesitive iformatio, ad quells the paic of rumor mogerig that might otherwise spread throughout the compay i these situatios. The key i limitig the directive recipiets, however, is careful advaced ivestigatio ad plaig. For example, if a former employee who is threateig to sue spet time while employed i various departmets, the failure to iclude eve oe of those departmets i the decisio makig process could lead to the iadvertet failure to locate, ad ultimate loss of, relevat evidece. Similarly, icomplete kowledge of where relevat back-up tapes may be stored at various compay offices may lead to a failure to advise a particular brach office or storage facility of the hold directive. It is from scearios like these that the disastrous Colema cases of the litigatio world arise. Colema (Paret) Holdigs, Ic. v. Morga Staley & Co., Ic., 2005 WL (Fla.Cir.Ct. Mar. 1, 2005); 2005 WL (Fla.Cir.Ct. Mar. 23, 2005). Give this sigificat dowside risk, it is advisable to take great care i limitig the hold letter recipiet pool ad err o the side of broader dissemiatio, particularly whe the prelimiary ivestigatio leaves too may ope questios regardig the scope ad locatio of potetially discoverable iformatio ad data. I every istace, however, the otice should be set to the persos directly ivolved i the evets relevat to the litigatio or ivestigatio ad those resposible for maitaiig the compaies computer systems (icludig archivig both hard copy ad electroic records). See Wigito v. CB Richard Ellis, Ic., No. 02 C 6832, 2003 WL , at *5 (N.D. Ill. Oct. 27, 2003) (amog other problems with the preservatio otice set to employees was the defedat s failure to iform its director of etwork services that ay electroic iformatio should be retaied ). Keep It Simple The typical litigatio hold letter is ultimately iteded to reach ad be uderstood by a broad corporate audiece, from the mailroom to the board room. It is also completely ieffective if it is so log ad dese that may decide ot to read it at all. Therefore, except i exceptioal circumstaces, a iteral hold letter should ot exceed five or six brief, plaily worded, ad easily uderstood, paragraphs. Detailed explaatios of the litigatio, ivestigatio or other official iquiry typically do more harm tha good for several reasos. First, i most cases, the crux of the iquiry ad the relevat issues ca be described more effectively i simple laguage that most employees will take the time to read ad uderstad. Detailed I-House Defese Quarterly Witer

4 E l E c t r o i c D i s c o v E r y Exhibit A VIA CERTIFIED MAIL Employee Employee Address Re: Dear Employee: ABC vs. DEF Civil Case No.: 06-CV-1026 DEF CORPORATION March 28, 2006 PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT AND ATTORNEY CLIENT COMMUNICATION Office of The Geeral Cousel This is a matter of utmost importace. Please be advised that DEF s Office of Geeral Cousel requires your assistace with respect to preservig corporate iformatio i the above-refereced matter. I coectio with the litigatio referred to above, we write to advise you of DEF s legal obligatio to preserve relevat documets ad data i this matter ad elist your assistace i this regard. The lawsuit requires preservatio of all documets ad data relatig to [descriptio of evet, trasactio, busiess uit, product,; optioal: brief descriptio of litigatio issue or claim] from all sources. Documets ad data as used here meas ot oly hard copy documets, but audio recordigs, videotape, , istat messages, word processig documets, spreadsheets, databases, caledars, telephoe logs, cotact maager iformatio, Iteret usage files, ad all other electroic iformatio maitaied created, received, ad/or maitaied by DEF o computer systems. Sources iclude all hard copy files, computer hard drives, removable media (e.g., CDs ad DVDs), laptop computers, PDAs, Blackberry devices, ad ay other locatios where hard copy ad electroic data is stored. Keep i mid that ay of the above metioed sources of relevat iformatio may iclude persoal computers you use or have access to at home, or other locatios. It also icludes iaccessible storage media, such as back-up tapes which may cotai relevat electroic iformatio that does ot exist i ay other form. I order to comply with its legal obligatios, DEF must immediately preserve all existig documets ad data relevat to the claim/ivestigatio described above ad susped deletio, overwritig, or ay other possible destructio of relevat documets ad data. Guidace o how to preserve relevat documets ad iformatio has bee posted o the DEF itraet site uder ABC v. DEF preservatio guidace. If you have ay questios o how to comply with this directive, please cotact DEF s IT Departmet at extesio Electroically stored data is a importat ad irreplaceable source of discovery ad/or evidece i this matter. You must take every reasoable step to preserve this iformatio util further otice from the Office of Geeral Cousel. Failure to do so could result i extreme pealties agaist DEF. You will be cotacted by DEF s IT Departmet ad the Office of Geeral cousel i the ear future for a update o your preservatio efforts ad to aswer ay questios you may have. I the iterim, if this correspodece is i ay respect uclear, please cotact Mary Smith, Esq. i the DEF Legal Departmet at extesio 6666 or Jack Johso i the DEF IT Departmet at extesio They will assist you i ay way ecessary. Sicerely, cc: Chief Executive Officer Chief Iformatio Officer Joh Q. Joes Geeral Cousel 12 I-House Defese Quarterly Witer 2007

5 descriptios of the litigatio or ivestigatio may also lead to statemets or admissios regardig the compay s positio o the matter that fid their way ito a adversary s hads through the discovery process. Fially, detailed descriptios of sesitive proceedigs ted to violate eed to kow protocols, exposig rak ad file employees to iformatio about which they simply do ot eed to be aware ad fosterig water cooler discussio that detracts from employee productively, poisos the corporate atmosphere ad creates problematic potetial witesses. Additioally, i most cases, metio of the possible trigger date of the corporate obligatio to preserve also should be avoided. I some cases, however, it may be appropriate to idetify the relevat date rage that should be applied to the gatherig ad retetio process, such as whe it ca be safely assumed that documets ad data created prior to a certai date will ot be discoverable. Abset the coset of your adversary or a court order defiig the relevat date rage, however, date restrictio i litigatio hold letters ca pose sigificat risk. I may istaces, the hold letter should simply reflect that ay documets or data relatig to the issue that presetly exist should be preserved, as should all such materials obtaied or created subsequet to the date of the letter. Because retetio obligatio trigger dates are amog the most hotly cotested ad difficult to determie issues i e-discovery litigatio, a corporate documet metioig a specific trigger date or evet ca later become a admissio from which the compay (ad its cousel) may wish it could distace itself. Zubulake IV; Reda Marie, Ic. v. Uited States, 58 Fed.Cl. 57 (2003) (defedat ordered to produce backup tapes that were created o ad after the date the duty to preserve was triggered). I sum, the first or secod paragraph of the hold letter should simply ad clearly tell the target employee what the subject matter at issue is, the ature of the litigatio or ivestigatio ad that all documets ad data electroic or otherwise relatig to that issue, should be carefully preserved. Defie What Needs to Be Preserved ad Where It Might Be Located To have its iteded effect, the letter must commad the reader s attetio from the outset. Hold letters should begi with a clear statemet of the importace of the matter to the compay, followed by laguage that stresses that the employee plays a importat role i assistig the compay with the matter. The letter should explai simply that the compay has a legal obligatio to preserve documets ad data relevat to a particular evet, trasactio, busiess uit, product, ad/or employee, as the case may be, from all sources, ad that the employees help is eeded to comply with this obligatio. It is the critically importat to defie the term documets ad data ad the potetial sources so that the employee uderstads the broad scope of the obligatio ad is remided that today most documets are ot simply pieces of paper. No defiitio ca capture every type of documet or data, or every possible source. The goal should be to ecourage the employees to thik outside of the box whe they udertake their efforts to preserve The Sedoa Priciples, Commet 5.d.; see Wigito v. CB Richard Ellis, Ic., No. 02 C 6832, 2003 WL , at *5 (N.D. Ill. Oct. 27, 2003) (defedat was faulted for beig too arrow whe preservatio commuicatio to employees oly istructed employees to save documets that pertai to the amed plaitiff i a putative class actio although various other employees ad offices were idetified i the complait. ). Oe possible defiitio paragraph is: Documets ad data as used herei meas ot oly hard copy documets, but audio recordigs, videotape, , istat messages, word processig documets, spreadsheets, databases, caledars, telephoe logs, cotact maager iformatio, Iteret usage files, ad all other electroic iformatio maitaied created, received, ad/or maitaied by DEF o computer systems. Sources iclude all hard copy files, computer hard drives, removable media (e.g., CDs ad DVDs), laptop computers, PDAs, Blackberry devices, ad ay other locatios where hard copy ad electroic data is stored. Keep i mid that ay of the above metioed sources of relevat iformatio may iclude persoal computers you use or have access to at home, or other locatios. It may also be advisable, depedig o the circumstaces, to alert employees that back-up tapes are a possible source of relevat electroic data that must be preserved. While hudreds of pages of legal opiios have already bee published o the eed to preserve ad ultimately restore ad produce electroic data preserved o back-up tapes, both case law ad commetators have made clear that whe a party kows or should kow that storage media, such as back-up tapes, may cotai relevat ad potetially discoverable data, that that data does ot exist i ay other locatio, ad that those tapes exist at the time the hold obligatio is triggered, there may be a duty to preserve those tapes. Zubulake IV, 220 F.R.D. at 218; E*Trade Secs. LLC v. Deutsche Bak AG, 230 F.R.D. 582 (D. Mi. 2005) (holdig, [b]ecause NSI relied o its backup tapes to preserve evidece that was ot preserved through a litigatio hold, NSI should have retaied a copy of relevat backup tapes because it was the sole source of relevat evidece ); The Sedoa Priciples, Priciple 7; Moore s Federal Practice; 37A.12[5][e] (Matthew Beder 3d ed.) ( The routie recyclig of magetic tapes that may cotai relevat evidece should be immediately halted o commecemet of litigatio. ). Here, compaies should be careful to uderstad the differeces betwee disaster recovery ad archival back-up tapes ad systems. While this article will ot permit a detailed discussio of these issues, the critical poit is that compaies that use back-up tapes to archive iformatio that has bee removed from the active computer systems, or keep back-up tapes iteded for disaster recovery past their useful life such that they, i effect, become a archive system, may have obligatios to preserve these tapes if there is a possibility that they cotai relevat evidece. The Sedoa Priciples, Commet 5.h. Compaies should look carefully at this issue before craftig litigatio hold letters so that this source is, if ecessary, idetified to the target employees, icludig their IT persoel. Give Clear Directio The effective hold letter should give simple ad clear directio to the target audiece. The key message is that (1) existig relevat documets ad data should be ide- I-House Defese Quarterly Witer

6 E l e c t r o i c D i s c o v e r y tified, segregated ad preserved ad, (2) future relevat data created i the ormal course of busiess should be maitaied. Attempts to defie relevace with specificity should be avoided ad the typical recipiet should ot be trasformed ito a decisio maker o this issue. It should offer geeral guidace o how to comply with the obligatio ad a resource for assistace, which is typically the compay s IT departmet or specialist. It may also makes sese to have the compay s IT departmet set up a olie resource, such as a secure itraet site, to assist i the process. This paragraph might read: I order to comply with its legal obligatios, DEF must immediately preserve all existig documets ad data relevat to the claim/ivestigatio described above, ad susped deletio, overwritig, or ay other possible destructio of relevat documets ad data. Guidace o how to preserve relevat documets ad iformatio has bee posted o the DEF itraet site uder ABC v. DEF preservatio guidace. If you have ay questios o how to comply with this directive, please cotact DEF s IT Departmet at extesio Idetify the Risks of No-Compliace All iteral litigatio hold letters should cotai a simple statemet of the importace of preservig electroic data, ad the risks or serious cosequeces to the compay if the data is itetioally, or uitetioally, lost or compromised. A statemet to this effect serves at least two eds it reiforces to the employee the importace of the obligatio ad his/her cooperatio ad it establishes that the compay uderstads its obligatios ad the implicatios of o-compliace for ay future audiece (if, for example, the letter is produced as the corerstoe for a future defese of the corporate preservatio efforts). Agai, it is ot ecessary to detail the types of sactios that might be imposed or threate the recipiet with persoal cosequeces for o-compliace. The former is premature ad speculative ad the latter is likely couterproductive. This paragraph might read: Electroically stored data is a importat ad irreplaceable source of discovery ad/or evidece i this matter. You must take every reasoable step to preserve this iformatio util further otice from the Office of Geeral Cousel. Failure to do so could result i extreme pealties agaist DEF. Promise Follow Up ad Keep Your Promise Fially, the effective litigatio hold letter should always promise that the compay Attempts to defie relevace with specificity should be avoided. ad its cousel (i-house ad/or outside) will be followig up for a update o their preservatio efforts ad to aswer ay questios that may arise. The duty o both the compay ad its cousel to esure compliace with preservatio efforts caot be overstated. As Judge Sheidli oted i Zubulake V: A party s discovery obligatios do ot ed with the implemetatio of a litigatio hold to the cotrary, that s oly the begiig. Cousel must oversee compliace with the litigatio hold, moitorig the party s efforts to retai ad produce the relevat documets. Oce a litigatio hold is i place, a party ad her cousel must make certai that all sources of potetially relevat iformatio are idetified ad placed o hold, to the extet required i Zubulake IV. To do this, cousel must become fully familiar with her cliet s documet retetio policies, as well as the cliet s data retetio architecture. This will ivariably ivolve speakig with iformatio techology persoel, who ca explai system-wide backup procedures ad the actual (as opposed to theoretical) implemetatio of the firm s recyclig policy. It will also ivolve commuicatig with the key players i the litigatio, i order to uderstad how they stored iformatio. relevat s ad retaied them i hard copy oly. Uless cousel iterviews each employee, it is impossible to determie whether all potetial sources of iformatio have bee ispected. I short, it is ot sufficiet to otify all employees of a litigatio hold ad expect that the party will the retai ad produce all relevat iformatio. Cousel must take affirmative steps to moitor compliace so that all sources of discoverable iformatio are idetified ad searched. This is ot to say that cousel will ecessarily succeed i locatig all such sources, or that the later discovery of ew sources is evidece of a lack of effort. But cousel ad cliet must take some reasoable steps to see that sources of relevat iformatio are located. Zubulake V, 229 F.R.D. at 432. Aside from the clear obligatio imposed o a corporatio ad its cousel, a established follow up protocol makes practical sese. No matter how urgetly a letter is worded, may employees will simply ot make such a request a priority item o their everyday agedas, particularly if they have ot bee persoally ivolved i the uderlyig evets. Moreover, give the may locatios of electroic data ad the complexity of segregatig ad preservig this iformatio (icludig suspesio of ormal course data deletio protocols), there is simply o way to moitor whether employees are takig the steps eeded to preserve data short of persoal cotact o a regular basis. I short, e-data caot be treated like hard copy data whe it comes to esurig preservatio efforts if, for o other reaso, tha how much more quickly huge quatities of potetially relevat electroically stored data ca be altered or completely lost if appropriate measures are ot established ad eforced. The litigatio hold letter is ow a idispesable tool i the chagig ladscape of moder day litigatio. It is a critical elemet i satisfyig a party s obligatio to preserve evidece ad demostrate that a litigat uderstads these obligatios ad the cosequeces of o-compliace. As such, the hold letter will ofte become Exhibit A to ay defese of the litigat s preservatio efforts ad proof of its good faith i takig all reasoable steps to meet these obligatios. Thus, attetio to these few key elemets of the iteral litigatio hold letter ca lead to huge divideds dow the road. 14 I-House Defese Quarterly Witer 2007