Here's a continuation of my postings about the Electronic Discovery Institute's online course, that you can subscribe to for just $1. I last blogged about this course on February, 26, 2017. Go to https://www.lawinstitute.org/ to sign up for the course.
PRESERVATION OBLIGATIONS AND FORMATS
John Rosenthal, a partner at Winston & Strawn LLP. Michael Klein, senior counel with Altria Client Services, and Alexander Shekhter, the assistant general counsel at Verizon were interviewed for this course on the subject of preservation obligations and formats. Rosenthal chairs the e discovery practice at Winston, and Shekhter oversees e-discovery for Verizon.
Shekhter began by noting that ESI can be used as evidence, and parties have to insure that it is preserved.
Klein noted that the duty to preserve is largely driven by the common law, but some state statutes may dictate the terms of the obligation to preserve. There isn't a consistent approach across jurisdictions.
Shekhter discussed how most large enterprises have a document retention schedule. These can range from 1 year to perpetual preservation depending on the type of document. A legal hold can be implemented for the duration of a dispute.
Shekhter noted that courts around the country more or less agreed that preservation must be done when there is reasonable anticipation of litigation. As a best practice companies should place whatever custodians you have identified immediately on hold, even if all custodians are not identified.
Klein observed that weeks and months before a complaint is served are the time to determine the make the decisions on how to conduct a litigation hold.
Shekhter talked about he meaning of 'reasonable' in the context of a legal hold. If there is a clear threat of lawsuit the hold must be implemented. The standard doesn't excuse attorneys from exercising judgment. A hold must be implemented when chance of litigation is substantial.
Klein recommend the Sedona Conference's guidelines on legal holds as offering a methodical basis on how to determine when the duty to preserve has arisen.
Klein noted that not every scrap of paper needs to be preserved. The Zubulake decision set a reasonableness standard. Metadata must be preserved, and it must not corrupted be overriding data. The overall sttandard is one of reasonableness.
Rosenthal said that ESI is expanding rapidly with only 10% of information generated by a corporation converted to paper form. The amendments to the FRCP in 2015 found proportionality expressly recognized.
Klein emphasized that Rule 26 defines the scope of discovery. Courts will engage in proportionality inquiries, considering the concept of proportionality. The amendments to the FRCP make clear that discovery demands must be proportional to the stakes in the litigation.
Shekhter recommended calculating the scope of the hold by deciding the what the appropriate scope is n the face of overboard discovery requests. Parties should not be reluctant to get the judge involved, but should attempt to reach a compromise before involving the judge.
LEGAL HOLD NOTICE
Rosenthal remarked how case law indicates that a written hold needs to be issued in each case. This is not what the law actually requires . It just mandates reasonable steps to preserve. Large corporation will not issue a hold for every patent case, if has several thousand product liability cases it will just preserve relevant evidence. After Zubulake cases, most judges believe the law requires the issuance of a written legal hold notice.
Klein said that a legal hold notice is a written notice informing employees of the documents subject to preservation. It is a best practice that it must be in writing.
Shekhter emphasized that companies must be able to track which custodians are on hold and for how long.
Klein said the notice should identity the subject matter, the kinds of documents subject to preservation, and a list of custodians. The notice should also include instructions on how data should be preserved.
Rosenthal said that best practices are not identified by any single case. The industry has come up with these guidelines:
1. Retention plan meeting. Relevant players should discuss isues on the telephone. Checklist of items is usually reviewed.
2. Implementation of the plan - must issue written hold.
3. Sending out the legal hold
Klein noted that under the Zubulake standard not every person who might have information but only the key players in a matter should be put under hold.
Rosenthal discussed how a written hold is not enough. It is necessary to follow up in person. Tracking tools should be used to send a notice and track the implementation of the hold.
Klein noted that Judge Scheindlin's decisions found that lawyers must follow up to insure clients are preserving data.
Klien noted that with respect to the duty to supervise the preservation process courts are clear that counsel must be involved. It's clear that lawyers must insure that lay persons have a clear understanding about what is subject to preservation.
Rosenthal said that in-house counsel must effectuate the preservation. Klein said the supervision duites of counsel are critical. In-house counsel will have greater familarity with the employees; work habits and the flow of information. Outside counsel should rely on representations from in-house cousnel
Klein emphasized that employees should be instructed to dispose of the information after the hold is lifted.
Rosenthal noted on the many different types of electronic information. The average employee has multiple devices. It is very difficult to implement a hold without the use of technology. TAR engines may automate the process.
You must employ technology with advanced search technology to execute demonstrable preservation.
Shekther said that additional steps must be take after hold is issued. Companies will have constraints - actions must be taken -to stop custodians from deleting data on hard drive of PCS. It makes sense to run queries to preserve information.
Klein -pointed out that it is necessary to preserve information in its native format, even if is not produced it in this format.
Shekhter talked about how emails are probably not records , but just a wrapper to deliver a record - If asking to consider preserving real emails for 7 years , it's a good idea to- ask what kinds of email should be preserved. As soon as hold is lifted documents should be purged systematically.
Klien said that parties are required to preserve informatoin that is in aacessible. Under Zubulake companies don't have the obligation to preserve disaster recovery tapes, unless the tapes contain unique information that must be retained
Klein said that generally speaking the obligation to preserve does not extend to duplicates. The rules require the preservation of only one copy. The same document in hands of different parties can show who knew about certain information.
Rosnethal noted that following the amendment of FRCP in 2006, some parties were gaming the system to raise the settlement value of a case. No corporation can afford the risk of being accused of spoliation. Th new amended rule regarding sanctions will take off the table more serious sanctions where clients have acted reasonably, if there is no intent to destroy data.
Klein noted the wide array of standards that have courts have applied, leaving attorneys to ask f there a reckless or a negligence standard/ Must account for the more liberal standard and try to preserve everything.