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Litigation Holds: A primer
Litigation Holds: A primer
Litigation Holds: A primer
Litigation Holds: A primer
Litigation Holds: A primer
Litigation Holds: A primer
Litigation Holds: A primer
Litigation Holds: A primer
Litigation Holds: A primer
Litigation Holds: A primer
Litigation Holds: A primer
Litigation Holds: A primer
Litigation Holds: A primer
Litigation Holds: A primer
Litigation Holds: A primer
Litigation Holds: A primer
Litigation Holds: A primer
Litigation Holds: A primer
Litigation Holds: A primer
Litigation Holds: A primer
Litigation Holds: A primer
Litigation Holds: A primer
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Litigation Holds: A primer

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This presentation was given at the Western New York Paralegal Association on February 18, 2010. It's a more traditional powerpoint than I like to give (lots of bullet points and text) because it was …

This presentation was given at the Western New York Paralegal Association on February 18, 2010. It's a more traditional powerpoint than I like to give (lots of bullet points and text) because it was intended for distribution to non-attendees as well as attendees.

The presentation was a primer for paralegals on the topics of litigation holds, preservation, records management and the challenges social media present for all of these areas.

Enjoy!

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  • 1. Litigation Holds
    A primer
    Debbie Westwood, Consultant
    Your on call litigation support department
  • 2. What is a litigation hold?
    And is it any different to a legal hold?
  • 3. A litigation hold is a process which an organization uses to preserve ALL forms of relevant information when litigation is reasonably anticipated
  • 4. That means ESI too . . .
  • 5. A litigation hold is a process . . .
    It is not a piece of software
    Some eDiscovery software can help automate litigation holds
    But it is not a substitute for human intelligence
    It is not a once-and-done task
    See Zubulake v. UBS Warburg, 2004 WL 1620866 (S.D.N.Y. July 20, 2004) (aka “Zubulake V”)
    Imposes a continuing obligation on lawyers to remind key players of their preservation obligation
  • 6. A litigation hold is a process . . .
    Must be in writing
    See The Pension Committee of Montreal, et al. v. Banc of America Securities, et al., 05 Civ. 9016 (SDNY Jan. 15, 2010) (Judge Scheindlin wrote this opinion as well as the Zubulake opinions)
    See also Zubulake V
    Ideally want to have responses from key players (read receipts are not enough)
    Documentation is everything in eDiscovery
  • 7. All forms of relevant information . . .
  • 8. . . . when litigation is reasonably anticipated
    Case law varies enormously
    Phillip M. Adams & Associates, L.L.C. v. Dell, Inc., et al.,  2009 WL 910801 (D.Utah)
    Patent infringement case
    ASUS claimed “safe harbor rule” (FRCP 37(e))
    ASUS left records management decisions entirely up to employees
    Judge imposed sanctions
    BUT Judge essentially argued that hold had to be implemented EIGHT YEARS before suit was filed
  • 9. . . . when litigation is reasonably anticipated
    Phillip M. Adams & Associates, L.L.C. v. Dell, Inc., et al.,  2009 WL 910801 (D.Utah)
    This case is an outlier
    Generally there is a clear “trigger event” e.g.
    Letter from lawyer advising of potential claim
    Management discussion about a harassment event
    Doe v. Norwalk Community College, 248 F.R.D. 372 (D.Conn. 2007)
    Demand letters
    Threats of litigation or other evidence of intent to sue
  • 10. The (almost) perfect litigation hold letter
    Includes a clear language summary of the legal issues
    Includes a list of example locations for data and possible types of relevant data
    Includes a contact person for questions
    Includes a list of key custodians
    Includes a list of things to NOT do (defrag, hardware upgrades, opening / moving / deleting files)
    Is sent to key custodians and IT staff
    Is followed up with an in-person questionnaire
  • 11. Records management
    Key to effective litigation holds
  • 12. Records management
    A.K.A. Records retention policy, data destruction policy, information management
    Refers to the storage, retention and destruction of data created in the course of business
    Subject to various regulations
    Tax, HIPAA, SOX, etc.
    Subject to business relevance
    Accounting records, orders, “business intelligence”
    Should include ALL sources of information
  • 13. Records management
    How not to use your records management policy:
    Arthur Andersen LLP v. United States, 544 U.S. 696 (2005)
    August 2001:
    Arthur Anderson knew about financial irregularities related to Enron
    October 2001:
    Knew it would be subject to massive SEC investigation
    October 2001:
    Email from in-house counsel reminding staff to comply with existing document retention program
    November 2001:
    First subpoena from SEC
  • 14. Records management
    ARMA International is a key source of information (www.arma.org)
    Effective records management = lower eDiscovery costs
    Effective records management = lower risk of spoliation
    Effective records management = lower data storage / maintenance costs
    Effective records management = retrievable, authentic, accurate information
  • 15. Records management
    The challenge is figuring out what to keep . . . and what to destroy
  • 16. How to preserve . . .
    An incomplete guide
  • 17. How to preserve
  • 18. How to preserve / collect
    Email:
    Grab PSTs from Exchange server
    Don’t forget local PST archives
    Grab NSFs from Lotus Domino
    Don’t forget local replicas, Notes ID files
    Office documents:
    Pinpoint Safecopy will make evidentiary sound copies of active data
    Can forensically image entire computer also
  • 19. How to preserve / collect
    Databases:
    Live access
    Duplicate database structure & import relevant data (quite complex)
    Run reports (generally acceptable)
    Websites / online content:
    Wayback machine, HTTrack, Camstudio
    Subpoena to Facebook/Yahoo/Google/Twitter for private content
    Twitter: check out www.Arkovi.com
  • 20. How to preserve / collect
  • 21. How to preserve / collect
    Social media preservation in its infancy
    Wider issue is preservation of Web 2.0 content
    Not static
    Here today, gone tomorrow
    Pulls from multiple sources
    Not all publicly accessible
    Watch this space!
    Social media is increasingly important for “run-of-the-mill” litigation
    Divorces, personal injury, wrongful dismissals
  • 22. Questions?
    Thank you!
    Debbie Westwood, Consultant
    Your on call litigation support department

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