Monday, July 9, 2012

Litigation Hold Best Practices

Hat tip to Jeff Brandt, editor of the PinHawk Law Technology Daily Digest, for the pointer to an article published in the Daily Record: "Litigation holds — the do’s and don’ts."

Several participants at recent Risk Roundtables have commented on efforts to review their firms' internal litigation hold processes. The article presents a good refresher on the topic, in the context of a malpractice case between Paul, Hastings, Janofsky & Walker LLP and  a client:
  • "New York law requires a party to preserve evidence that may be relevant to pending or reasonably anticipated litigation... The litigation hold was distributed in 2008 but it appears no one read it."
  • "In his own deposition, the individual that destroyed evidence confirmed he received the litigation hold in April 2008, and even sent it along to others. However, he was not informed by counsel to preserve evidence until more than two years after this litigation began. This is a great example of why it is not sufficient to solely send out a hold notice. It is prudent and necessary to verify the recipient not only read the notice but understands what must be done and not be done."
  • The judge in the matter notes: "A party’s discovery obligations do not end with the implementation of a ‘litigation hold’ — to the contrary, that’s only the beginning. Counsel must oversee compliance with the litigation hold, monitoring the party’s efforts to retain and produce relevant documents.
The author explores additional detail in the case at hand, along with a deeper dive into requirements and best practices, which he summarizes:
  1. It is critical to send out a litigation hold notice when a party can reasonably anticipate litigation.
  2. It is even more critical to survey each person that received the notice to ensure they fully comprehend its meaning and instructions.
  3. Engage the IT department early in the process as they are a vital component in the litigation process within most organizations.
  4. Trust, but verify. If the IT department and key players state they have suspended automated deletion practices and have preserved documents, it must be verified. The case depends on it!

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