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E-Discovery Insights – Clearwell Systems, Inc.

Four Steps to a More Defensible Preservation and Legal Hold Process

Thursday, May 27th, 2010 To me, litigation holds in electronic discovery are like Federal sentencing. Most Federal criminal cases end in a plea agreement, so very few are ever tried in front of a jury, but sentencing must occur in 100% of the cases. Preservation is very similar – although you are likely to collect and produce in only a subset of cases, you must preserve in 100% of the cases. So, just as sentencing law is extremely important to the Federal criminal bar, preservation is one of the most important phases of e-discovery to corporate or litigation counsel. Naturally, I am surprised when I talk to corporate law departments that do not have a documented, repeatable process for legal holds that also includes standard procedures for IT. Simply emailing a hold notice to a custodian and recording the hold on a spreadsheet is not enough given Judge ShiraSheindlin’s recent opinion in Pension Committee v. Banc of America Securities .

So, what is a defensible litigation hold strategy, and how do you get it done? It is important to remember that the ultimate goal is preservation of any and all evidence that may be relevant to the matter at hand. Ther e are no hard and fast rules or checklists – only opinions from the bench of what is not enough. The keys to defensibility are consistency, standardization, documentation, and diligence. The place to start is with standardized policies and procedures as well as a person (or a portion of a resource) designated within the enterprise as the single point of contact for all issues related to preservation of evidence (read: project management). Technology can help, but a great preservation strategy can be developed without an expensive or vast technology investment. So, how do you get this done? Here are four steps you should take now:

I. Define the Process (You cannot execute a plan that does not exist): The first step to creating a great litigation hold strategy is defining a process or set of procedures that can be followed repeatedly. This process could include setting up tiers for ESI sources, with tier one sources always being preserved (these might include frequently requested sources like email, file servers, and perhaps computers of key custodians), tier two sources being preserved on a case by case basis (including sources that are more industry specific to the enterprise and therefore not always relevant in routine employment litigation or contract disputes), and finally tier three sources which include everything else. By tiering ESI sources, the enterprise can focus on developing detailed preservation protocols for the tier one and tier two sources while developing a less detailed protocol for tier three sources which would include simply naming IT subject matter experts who would be consulted in the event that those sources were ever subject to preservation requirements. This approach would allow

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E-Discovery Insights – Clearwell Systems, Inc.

the enterprise to prioritize data mapping and cataloging efforts on the tier one and tier two sources first. Data mapping can be an enormous undertaking, so the enterprise might do well to know as much as it can about the email system rather than spending critical time focusing on ESI that may never be subject to any preservation requirement. II. Dedicate Resources Appropriately and Engage Them Early: Personnel are a key concern for preservation. Allowing too many people to initiate and manage litigation holds could lead to confusion for IT and will certainly yield different results across multiple matters. A single person or team should be appointed to manage litigation holds for the enterprise, and that person or team should develop a sound relationship with IT, paying particular attention to the subject matter experts who manage tier one data sources. By forging the relationship early, communication and expectations will align before mistakes are made or spoliation occurs. Of course, consistency is a key component of defensibility, and this cannot be achieved with a reactive, undocumented approach. IT must understand the scope and consequences of spoliation, and they must be alerted early enough to halt routine destruction of ESI from the company’s systems. Most corporate law departments have policies in place for “opening files” when new matters occur; it would be relatively easy to include a step in this procedure for engaging the appropriate personnel to begin preserving ESI at this early stage. Leaving it up to individual attorneys or paralegals could cause preservation procedures to get implemented at various stages in the litigation, exposing the corporation to unpredictable and varying degrees of liability.

III. Audit, Log, and then Audit the Log: Auditing the process is also critical to defensibility. When ESI is moved, the process must be documented (even r etaining shipping receipts for ESI that must be transported), and all conversions or alterations of the ESI must be documented (preferably with a procedure for commonly-encountered issues and then in a log as performed). Log every step along the preservation path – including correspondence with custodians, when litigation hold reminders are sent, and any action performed on the pr eserved ESI (throughout the duration of the litigation).

IV. Talk to Your Custodians! Interviews with custodians can go a long way toward achieving the diligence element of defensibility. Acknowledgment by the custodian that they understand the preservation requirement being placed upon them and that they agree to preserve ESI is critical. Often, custodians can also provide information about additional custodians who should be contacted or ESI sources that may not have been considered. These and other matter -specific questions should be asked of the key custodians at a minimum. This information may also prove useful when developing keywords for early case assessment or meet and confer preparation.

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E-Discovery Insights – Clearwell Systems, Inc.

As you may have noticed, I have not mentioned any technology yet. That is because a sound preservation strategy begins with sound policy, not simply purchasing a technology solution that purports to solve all of your problems. Invest time in analyzing your litigation history, open matters, ESI sources, and personnel. From ther e, processes can be developed, and where ther e are processes, there are then opportunities for automation and optimization through technology. Simply defining the process is not enough – it must be r epeatable and implemented consistently. One of the best ways to ensure that a process is repeated is to automate it, removing the potentially error-prone manual work where it is not required. Following these steps should help jumpstart the development of a defensible preservation strategy, and once developed, you may be surprised to find that existing technology can help automate many of the procedur es you have created. Wher e existing technology investments fall short, venture into the market place informed and with the keys to defensibility in mind: consistency, standardization, documentation, and diligence. Learn More On Litigation Software Electronic Discovery Litigation

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Four Steps to a More Defensible Preservation and Legal Hold Process