Outline of Craig Ball's Electronic Discovery Workbook - Custodial Holds
Here's a continuation of my outline of the 2016 edition of Craig Ball's Electronic Discovery Workbook which I last posted about on October 1, 2017.
XIV. Custodial Hold A. General a. Should be tailored to the needs of a case. b. Most parties want to use a checklist or form letter, but none of these are substitute for understanding of specific ESI environment. c. Maximize retention of relevant, non-duplicative data, while minimizing cost and business disruption. B. Custodial Hold a. Only custodians can know what data is and where it is located. b. Subjective in nature. c. Failure to implement written custodial hold negligence per se as per Judge Scheindlin, but Ball doesn’t agree. i. Nat'l Day Laborer Org. Network v. ICE (2012) – Judge Scheindlin – risk of relying solely on custodial holds. d. Many custodians won’t bother to respond to the hold or respond badly. e. Must use custodial holds in every case, but never rely on them alone. C. Custodian’s Own Conduct at Issue a. Put hold on email and network shares of key custodians. b. Image PCs. c. Change preservation settings on email server. i. Dumpster setting in MS Exchange. D. Effective Legal Hold Notice a. Malfeasance to direct a client to preserve everything. b. Most data can’t be easily deleted. Manage risks re: email and or repurposed PCs. c. Put stickers on PCs and other electronic media indicating they are subject to a legal hold. d. Pull back-up tapes from rotation. e. Supervised custodial preservation may be fine if journaling( changes not yet committed to the file system's main part) in place. f. Preservation directives should address each person’s role. IT can pull back-up tapes, but it won’t understand content. g. Personalize each form notice. h. Don’t sound like a lawyer; design a notice a 12 year old can understand. Give specific examples. E. Perfect Notice a. contact for Questions b. Timely c. Scope d. from person with Authority e. sent to All custodians f. tells custodians they will be Accountable g. Acknowledgment h. effective Channel i. Context QTS AAA CC