Circling the Wagons. How to Implement an Effective Litigation Hold. Copyright 2006 IE Discovery, Inc. All rights reserved.

Transcription

1 Circling the Wagons How to Implement an Effective Litigation Hold Copyright 2006 IE Discovery, Inc. All rights reserved.

2 Agenda Importance of Document Retention Plan Litigation Hold Best Practices Case Studies 2

3 Importance of Document Retention Plan 3

4 The Facts 4

5 WHY? 5

6 WHY? Costs Escalating Costs Absence of Repeatable Discovery Process Increased Costs for Saving, Retrieving and Restoring Wrong Information 6

7 WHY? Costs Escalating Costs Absence of Repeatable Discovery Process Increased Costs for Saving, Retrieving and Restoring Wrong Information Sanctions Spoliation Adverse Inference Instruction Dismissal 7

8 WHY? Costs Escalating Costs Absence of Repeatable Discovery Process Increased Costs for Saving, Retrieving and Restoring Wrong Information Sanctions Spoliation Adverse Inference Instruction Dismissal Pain Slow Retrieval of Information Scattered Information Poor Planning and Communication 8

9 Importance of Document Retention Plan How is a document retention plan created:» Identify what you have» Create matrix» Fix retention problems» Disseminate, educate, train» Monitor» Revamp as necessary» Maintain index of destroyed documents 9

10 Litigation Hold Best Practices

11 Litigation Hold Best Practices First Priority Know Your Data» Active Online Data Hard Drives» Near-line Data CD-ROMs, DVDs» Offline Storage/Archives Disks/tapes that are labeled and stored» Backups Tape drives Not organized for retrieval of individual documents/files» Erased, Fragmented or Damaged Data Can only be accessed after significant processing 11

12 Litigation Hold Best Practices Simple Network 12

13 Litigation Hold Best Practices Understand the flow of the data 13

14 Litigation Hold Best Practices Consider the common discovery demand for all from a particular employee.» Obvious response is to harvest the active and archived files from the employee s desktop computer. But 14

15 Litigation Hold Best Practices The employee s can also reside on:» Laptop» Home computer» PDA» server» Back up tapes of the server» Removable media, i.e. CD Rom or USB» Multiple applications, i.e. Yahoo or Hotmail 15

16 Litigation Hold Best Practices Second Priority Data Retention (a/k/a What Do You Do Now?)» Look at document retention plan prior to lawsuit (1) Review Policy (2) Determine gaps and deficiencies (3) Monitor implementation in the field (4) Update policy if necessary» Steps you should be taking: (1) Isolate key players key departments key locations date ranges key data sources & identify data types (2) Secure data (3) Determine if imminent destruction on the horizon (4) Suspend policies 16

17 Litigation Hold Best Practices Third Priority - Preservation» Know when to preserve» ABA Civil Discovery Std. 10 (1999)» When a lawyer who has been retained to handle a matter learns that litigation is probable or has been commenced, the lawyer should inform the client of its duty to preserve potentially relevant documents and of the possible consequences of failing to do so. 17

18 When Does the Duty To Preserve Attach? When a party has notice that the evidence is relevant to the litigation, or When a party should have known that the evidence may be relevant to future litigation. 18

19 When Does the Duty To Preserve Attach? 19

20 When Does the Duty To Preserve Attach? 20

21 Litigation Hold Best Practices Know the Evidence Destroyers :» Automatic deletion of » Recycling back up tapes» Decommissioning of equipment» Upgrading» Swapping» New Software & Gadgets» Defragmenting» Wiping» Reformatting 21

22 Litigation Hold Best Practices Fourth Priority - Issue Hold Notice» Notice should be sent via and regular mail» Synopsis of the case in laymen s terms» Documents to be preserved» Electronic data to be preserved» How to preserve documents & data» To immediately notify of data destruction» Contact information Legal Technical Hopson v. Mayor of Baltimore 22

23 Litigation Hold Best Practices Fifth Priority Monitor Litigation Hold» Must take affirmative steps to monitor compliance including: Interviews with key players and document custodians Re-issuance at regular intervals Testing and monitoring 23

24 Litigation Hold Best Practices Sixth Priority Set Up an Enterprise Wide Working Group» Group should consist of: Legal IT Records Management Compliance Departments 24

25 Litigation Hold Best Practices How to get IT on board the Wagon:» Learn their language» Use an interpreter» Earn their respect» Educate them» Scare them 25

26 Litigation Hold Best Practices Seventh Priority Set Up a Response Team» Like the Enterprise Wide Working Group, the Response Team should consist of: Legal IT Records Specialists Compliance Specialists» Pre-set Procedures for handling discovery responses Same notice to document custodians Follow up procedures dictated and followed Pre-determined levels of escalation for non-responsive custodians 26

27 Litigation Hold Best Practices Collection of Potentially Discoverable Data: (1)Identify places within the client or agency network where the data lives (2)Determine the most cost effective scope and methods for harvesting, restoring and preserving (3)Produce data in a format that facilitates review» Cull» Prioritize» De-dupe 27

28 Must Understand Litigation Hold Best Practices» Data Creation and Flow» IT Structure» Document Retention Policies Must Implement» Data Retention Protocol» Effective Litigation Hold Procedure» Enterprise Wide Working Group Must Maintain» Chain of Custody» Documentation 28

29 Case Studies

30 Case Studies Burden of Proof Consol. Aluminum Corp. v. Alcoa, Inc., 2006 WL (M.D. La. July 19, 2006)» Party seeking adverse inference instruction must show: The party having control over the evidence had an obligation to preserve it at the time it was destroyed; That the records were destroyed with a culpable state of mind ; and That the destroyed evidence was relevant to the party s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. 30

31 Case Studies Normal Computer Use Antioch v. Scrapbook Borders, Inc., 210 F.R.D. 645 (D. Minn. 2002)» Copyright infringement and unfair competition case» Court entered preservation order and for expert to copy hard drives and retrieve deleted data» The defendants may have relevant information, on their computer equipment, which is being lost through normal use of the computer. 31

32 Case Studies Wiping Software Arista Records, L.L.C. v. Tschirhart, 2006 WL (W.D. Tex. Aug. 23, 2006)» Copyright infringement action based on internet file-sharing activities» After notice of lawsuit and after court order, defendant used a wiping software to permanently remove data from her hard drive» Court found destruction deliberate and in bad faith» Sanction: Case dismissed 32

33 Case Studies Must Show Relevant Evidence Lost or Destroyed Crandall v. City of Denver, 2006 WL (D. Colo. Sept. 19, 2006)» Plaintiffs alleged they were exposed to harmful chemicals at Denver International Airport» Moving party must establish some element of harm 33

34 Case Studies Reasonable Investigation 3M Innovative Props. Co. v. Tomar Elecs., 2006 WL (D. Minn. Sept. 18, 2006)» Patent infringement case»... Parties are under a duty to complete a reasonable investigation when presented with opposing party s interrogatories and discovery requests. Discovery requests served on a company solicits information know tot eh company, not solely information known by the president, CEO, or other person directed to respond...» Sanctions: Adverse inference instruction, additional discovery, reasonable casts and fees 34

35 Case Studies Cost-Shifting Quinby v. WestLB AG, 2006 WL (S.D.N.Y. Sept. 5, 2006)» Gender discrimination and retaliation case» Defendant sought to shift cost of restoring and searching back up tapes to Plaintiff, as well as, the cost of reproducing some files in a different format» Plaintiff argued there should be no cost shifting because Defendant, pursuant to an obligation of preservation, was required to maintain evidence in an accessible format» Defendant argued it satisfied preservation duty by maintaining s on back up tapes» Court said:... [i]n complying with a duty to preserve evidence a party will be free to preserve electronic evidence in any format it chooses, including inaccessible formats. 35

36 Questions 36

37 Contact Information Stacy O Neil Jackson, Esq. Corporate Counsel (703) sjackson@iediscovery.com Karen Pruitt Account Manager ( ) kpruitt@iediscovery.com 37