It can be time-consuming to create workflows with each new litigation. And so, we offer three blog entries dedicated to considerations at each stage of the eDiscovery process.  Specifically, over the next three posts we will explore workflow considerations for each of: Preservation and Legal Hold Workflow; Custodian Identification and Interview; and Collecting and Producing with the goal of providing guidance for implementing consistent processes. 

The goal of any eDiscovery project is to conduct the project in a way that is efficient, defensible, and reasonable. A critical first step is issuing a preservation notice/legal hold.  But what is a litigation hold, and why do I need one?

Imagine a business or individual is served with a complaint (or receives a credible threat of litigation^[1]).  It becomes critical at that point to take steps to preserve information relevant or potentially relevant to the lawsuit (or threatened lawsuit). To this end, a written litigation hold notice (“Hold”) typically is drafted and issued. While an oral directive may convey all the necessary information to the proper people, it is a better practice to paper your instructions. Not only will a written document allow you to recall (perhaps years later) what information was subject to the Hold and who received the Hold, but it can also serve as a protective mechanism should information identified in the Hold as relevant, slip through the cracks and be inadvertently deleted. Thus, a critical function of the Hold is to serve as the means for proper compliance with one’s preservation requirements and as a tool to avoid the inadvertent destruction of evidence. [I would not equate potential sanctions with the inadvertent destruction of evidence, as referenced in the last blog post, a court needs to infer the intentional destruction of evidence to impose sanctions.  I don’t feel strongly on this, and you write “potential sanctions” which is accurate, but I make the comment for your consideration].

The Hold is the catalyst by which individuals are notified to preserve information.  Identifying who should receive the Hold is a critical next step.  If your client is an individual sued in his/her individual capacity, the task is straightforward.  If, however, your client is an entity with a national presence, identifying relevant custodians^[2] likely will be a more involved endeavor.

Once relevant custodians are identified (custodian designations should be revisited throughout the litigation and revised as needed) one should draft the Hold and an accompanying questionnaire.^[3]

A Hold need not be lengthy or replete with legal-ese.  Rather, the more streamlined and understandable the better as one does not want recipients reading only part of the Hold or unclear about what is required of them.  Minimally, a Hold should include the following:

1. Introduction: Explain why the Hold is being implemented so recipients understand the importance of compliance. 

2. What is to be Preserved: The Hold becomes a checklist for the specific records one seeks to preserve.  Including a temporal limitation and a description of the relevant categories of information is advisable.

3. Mandatory Preservation: Emphasize that preservation is mandatory, and that failure to comply may compromise the company’s ability to prosecute its claims or defend itself in the lawsuit and may have potential adverse employment consequences for the custodian.

4. Confidentiality: Stress the confidential nature of the lawsuit and the company’s expectation that employees not unnecessarily discuss the subject matter of the litigation with others (i.e., co-workers, spouses, friends) unless doing so is approved by counsel.  The purpose of limiting one’s ability to discuss the matter is to minimize discoverable communications that could impact the lawsuit.

5. Duration of the Litigation Hold: The Hold should advise that individuals are required to preserve materials until they are notified in writing that the Hold has been released.

6. Prompt for Questions: The Hold should provide the name and contact information for company counsel or another person designated to provide guidance and answer questions. Often outside counsel or the General Counsel are identified for this purpose.  Counsel and relevant IT personnel often are copied on all transmittals of the Hold to facilitate Custodians’ confidential requests for legal advice and/or confidential requests for technical support to facilitate compliance with the Hold.

7. Receipt and Acknowledgment: It is advisable to require recipients to respond in writing that they have read the Hold and will comply with its requirements. [Not every litigation hold will include a questionnaire.  The way this is drafted, it suggests that it is the only way to do it.  The questionnaire/custodian interview may come later, etc.]  Embedding a read receipt in the transmittal email may be a good measure, too. This allows counsel to follow up as necessary with non-responsive recipients.

8. Completion of questionnaire: If a custodian questionnaire accompanies the Hold, provide a date by when completed questionnaires must be returned.  Reviewing the responses will help counsel identify both potentially responsive data sources and identify additional, potential custodians.

In sum, a Hold should include at least the above essential information and should be drafted in a clear and comprehensive fashion such that recipients understand what is being asked of them.   The Hold will serve as a roadmap for proper compliance with the client’s document preservation requirements.

FOOTNOTES

[1] Different jurisdictions have different rules as to when one’s obligation to preserve information arises.  The most common standard however, and the one embraced in New York state and federal courts alike, is “Once a party reasonably anticipates litigation…”

[2] For purposes of this blog, “Custodians” is used to refer to the individuals/sources (i.e., shared drives, file cabinets) likely to possess information potentially relevant to the claims or defense in the lawsuit.

[3] A Hold questionnaire seeks to identify data sources.  For example, what hardware does a custodian use at work (laptop, desktop), whether they work from home, use of mobile devices, length of employment, locations where they save information (shared drive, locally), etc. By understanding a custodian’s involvement and potential repositories of data, managing preservation can be facilitated.