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Trendspotting in Legal Holds, Part 1 – Gibson Dunn Mid-Year E-Discovery Update

August 17, 2010

Two major reports on the electronic discovery sector were released within the last month.  The first is the Gibson Dunn & Crutcher 2010 Mid-Year Electronic Discovery and Information Law Update in mid-July followed by The 2010 Socha-Gelbmann Electronic Discovery Survey at the beginning of August. It is interesting to see in both reports – of case law and business trends, respectively – that preservation is front and center. Both reports, in their own way, reiterate what we’ve been saying: 2010 is the Year of the Legal Hold.


2010 Mid-Year Electronic Discovery and Information Law Update

Today we look at the Gibson Dunn mid-year report which reviews case law for the first six months of 2010 and summarizes key cases involving e-discovery.  It’s no lightweight at nearly 7,000 words, but it is an invaluable resource for its comprehensive analysis. Interestingly, nearly one quarter of that focuses on opinions relating to legal holds.  Here are some of the points relating specifically to legal holds in the areas of preservation and sanctions (with cited cases in parentheses):

Preservation Trends:

  • “The 2010 opinions addressing the preservation of electronic evidence continued to emphasize that the duty to preserve ESI may be triggered before the filing of a complaint.”  (Pension Committee, Crown Castle v. Nudd)
  • “Courts also continued to hold that parties need to preserve ESI that is stored in formats other than email, including ‘outlier ESI’ and ephemeral data that might otherwise be overlooked.”  (OCE N. Am., Inc. v. Brazeau, No. 09 C 2381, 2010 U.S. Dist. LEXIS 25523 at *19 (N.D. Ill. Mar. 18, 2010), Passlogix v. 2FA, Wilson v. Thorn Energy, LLC, No. 08 Civ. 9009 (FM), 2010 WL 1712236 (S.D.N.Y. Mar. 15, 2010))
  • “Courts placed increased responsibility on parties and counsel to ensure that preservation measures are effectively implemented.”  (Pension Committee, Jones v. Bremen H.S., John B. v. Goetz, No. 3:98-0168, 2010 U.S. Dist. LEXIS 8821, at *85 (M.D. Tenn. Jan. 28, 2010))
  • “Reflecting the maturation of e-discovery law, courts this year have stated that, going forward, what is reasonable will be judged instead according to ‘clearly established applicable standards.’” (Rimkus v. Cammarata)
  • “Several courts emphasized that the litigation hold must be written.” (Pension Committee, Crown Castle v Nudd)

Sanctions Trends:

  • “Courts have continued to impose monetary sanctions on outside counsel for failing to adequately supervise a client’s collection and preservation of ESI.” (In re A&M Florida Properties, No. 09-01162, 2010 WL 1418861 (S.D.N.Y. Apr. 7, 2010), Qualcomm, Inc. v. Broadcom Corp., No. 05-cv-1958, 2010 WL 1336937, (S.D. Cal. Apr. 2, 2010))
  • “The most notable and widely reported sanctions cases in the first half of 2010 concerned the imposition of adverse inference sanctions for failure to preserve relevant evidence.” (Pension Committee, Passlogix, Kwon v. Costco Wholesale Corp., Civ. No. 08-00360, 2010 WL 571941 (D. Haw. Feb. 17, 2010))
  • “[T]he court imposed an adverse inference sanction for gross negligence where the defendants had lost all data relevant to a large transaction when a USB drive was erased.” The court did not allow a safe harbor under FRCP 37(e) because “erasure occurred outside of any routine document management procedures.” (Wilson v. Thorn Energy, LLC, No. 08 Civ. 9009 (FM), 2010 WL 1712236 (S.D.N.Y. Mar. 15, 2010))
  • “In contrast with these cases, courts in other circuits have required a showing of willfulness before imposing an adverse inference, and have held that even grossly negligent electronic discovery failures are insufficient to impose such a severe sanction.  (Rimkus v. Cammarata, OCE N. Am.. v. Brazeau)
  • “Although courts demonstrated their willingness to impose sanctions on parties and counsel, there appears to be reluctance in most circuits to impose the harsher sanctions of dismissal and adverse inferences, particularly in the absence of intentional misconduct.” (Pension Committee, Passlogix, Diocese of Harrisburg v. Summix Dev. Co., No. 1:07-CV-2283, 2010 WL 2034699, Kwon v. Costco)

What It Means about Legal Holds

With the tone set by Judge Scheindlin’s Pension Committee opinion making waves right after the New Year, it clearly uncorked similar frustrations in lacking preservation efforts in jurisdictions around the country. The Gibson Dunn report clearly points to the need for counsel to take a careful look at their current data preservation and legal hold practices.

Counsel (both inside and outside) must be far more actively engaged in the preservation process, including recognition of when a duty to preserve has attached and what actions an organization needs to take in response.   Lackadaisical efforts – failing to send a hold in writing, failing to clearly articulate the scope of preservation actions, failing to actively supervise the implementation of those actions are – and will continue to be – met with increasingly harsh penalties.  It also reinforces the critical value of well-articulated and consistently practiced information management and preservation procedures.

Please visit our blog on Thursday to read Part 2…

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Coming Soon to Silicon Valley! “Hold Fast” CLE on July 15th

July 2, 2010

You are invited to join D4 and Legal Hold Pro for a complimentary lunch program and earn 1.0 MCLE credit approved by the California State Bar Association.

Thursday, July 15, 2010

Four Seasons Hotel Silicon Valley
2050 University Avenue
East Palo Alto, CA

Registration at 11:30 a.m. with lunch being served at 12:00 p.m.

Space is limited, so be sure to register for the event to ensure your place!

PROGRAM OVERVIEW

2010 is the Year of the Legal Hold

This has been a watershed year for cases involving legal holds and the need to preserve responsive electronically stored information (ESI). The Courts have been issuing monetary sanctions and declarations of “gross negligence” in multiple cases.

Hold Fast  is a comprehensive review of recent litigation hold cases starting with January’s Pension Committee v. Banc of America Securities, Rimkus v. Cammarata, Crown Castle v. Nudd Corp., Jones v. Bremen HS and other recent cases that are driving the need for making legal holds a priority in any litigation.

  • What are the three most common mistakes seen across these cases?
  • What are the responsibilities of the in-house counsel and the trial attorney for the preservation process?
  • Based on these opinions, what entails “best practices” for legal holds?

This timely program will relate recent case law to the following program topics:

  • The duty to preserve;
  • Triggering event analysis;
  • Preservation strategies;
  • Standards for collection;
  • Self-collection considerations; and
  • Spoliation examples.

About the Presenters

Joshua Gilliland, Esq., Professional Development Manager, D4, is a California attorney who focuses on electronic discovery issues for D4 LLC.  Josh has conducted over 100 e-Discovery seminars, covering all of North America, from St. Thomas to Anchorage, addressing the e-Discovery issues from the Federal Rules of Civil Procedure and Federal Rules of Evidence.  Josh is the blogger for the Bow Tie Law Blog, covering issues of identifying anonymous bloggers who commit defamation, ethical standards for electronic discovery, personal jurisdiction and other timely issues.

Josh has also been an invited speaker at bar association events and trade shows, in addition to serving as a guest lecturer on e-Discovery at several law schools.  He effectively applies his real-world knowledge to show lawyers how they can increase their efficiency and master factual issues using litigation support technology.

Follow Josh on Twitter @BowTieLaw

Brad Harris, Vice President of Legal Products, Zapproved, Inc., has more than 25 years of experience in the high technology and enterprise software sectors, including assisting Fortune 1000 companies enhance their e-discovery preparedness through technology and process improvement.  Brad is a frequent author and speaker on e-discovery issues and is an expert on litigation hold strategies.  He has published articles on the subject in Corporate Counsel, Metropolitan Corporate Counsel and KMWorld and presentations at leading industry events such as Legal Tech New York.  Most recently, he led electronic discovery readiness consulting efforts and product management for Fios, Inc., a leading e-discovery services provider, from 2004 to 2009 where he was instrumental at driving the expansion of professional services and legal technology consulting practice areas.

Contact Us:
info@legalholdpro.com
Phone: (866) 366-0666

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Northern District of Illinois Makes Its Own Way with Opinion Echoing Need for Strong Legal Holds

June 10, 2010

Jones v. Bremen High School Dist. 228, 2010 WL 2106640 (N.D. Ill. May 25, 2010)

By Brad Harris

On May 25, 2010, a new opinion was issued out of the Northern District ofIllinois that is noteworthy in what it does not include: It does not cite Zubulake or Pension Committee. Not even once. Yet, the Court still independently arrives at a similar set of requirements for what constitutes reasonable and good faith effort when it comes to preserving potentially relevant data.

Summary Review of Case

The case before U.S. Magistrate Judge Susan E. Cox (N.D. Ill.) involved an EEOC complaint from an employee at a high school in suburban Chicago.  The plaintiff alleged that she endured discrimination based on race and disability and was wrongfully terminated in retaliation for the discrimination charges.

The “trigger event” began when the plaintiff filed her EEOC charge in October 2007.  Failing to issue a litigation hold, the defendant’s initial response was to instruct three administrators to “search through their own electronic mail” and save relevant messages.  No further guidance by counsel was given.  Furthermore, no effort was made to suspend routine destruction of ESI, such as a 30-day destruction policy of back-up tapes (and it wasn’t until October 2008 that automatic archiving of email was initiated).  Finally in the spring of 2009, the defendant instructed all of its employees to preserve emails which might be relevant to the litigation (plaintiff’s first request for production was filed in May 2009).

In December 2009, the plaintiff filed a motion for sanctions due to spoliation of evidence.  The defendant subsequently produced thousands of additional emails in an effort to fill in “most (if not all) of the gaps” in their previous production.  However, the Court concluded “because there was no hold put in place on electronic documents and because emails could be manually and permanently deleted if an employee chose to do this, we cannot determine with certainty that all email relevant to plaintiff’s claims were preserved.”

Sounds all too familiar — the likely result of failing to issue a written legal hold is spoliation of evidence.

The judge determined that sanctions were necessary because “defendant’s attempts to preserve evidence were reckless and grossly negligent.”  The sanctions included the following:

  1. Jury instructions that the lack of discriminatory emails during the period when a legal hold was not issued is not evidence that no such statements were made. (Note that the Court denied issuing an adverse inference instruction.)
  2. Defendant will cover plaintiff’s costs and fees for preparing motion for sanctions.
  3. Plaintiff can depose witnesses on recently produced emails and the defendant will pay for the court reporter.

Jones v. Bremen HS Is New ‘Strain’ of Legal Hold Case Law

As previously mentioned, Judge Cox’s opinion cites 15 cases with all but one of them originating in the Northern District of Illinois or the Seventh Circuit Court of Appeals which has jurisdiction. (The only outlier is a case from the District of Massachusetts.)

There is no Zubulake, Pension Committee or Judge Scheindlin.  By creating an independent and parallel opinion, Jones v. Bremen HS further entrenches the need for effective preservation processes.

The Court does not automatically deem the failure to issue a legal hold as a breach of the duty to preserve, but the section on “Legal Standards” echoes the sentiments and guidelines outlined in other cases involving preservation, including:

  • Trigger event – Defendant’s duty to preserve is triggered when “it reasonably knows or can foresee [evidence] would be material (and thus relevant) to a potential legal action.”
  • Timely Issuance – “It is undisputed here that defendant did not place a litigation hold…when it first learned” of the charge.
  • Key Players – “Defendant inexplicably did not request all employees who had dealings with plaintiff to preserve emails so that they could be searched further for possible relevance….”
  • Supervision by Counsel – Defendant “unreasonably” instructed employees “to search their own email without help from counsel and to cull from that email what would be relevant documents.”
  • Suspension of Automatic Back-up Deletion – “[D]efendant’s technology department could have easily halted the auto-deletion process.”

In the past, some litigants have argued that issuing a legal hold is a burden.  In this case, the Court takes that argument to task when raised by the defendant:

[T]here is no evidence that a simple litigation hold to preserve existing electronic mail would have placed any burden on defendant.

Impact of Jones v. Bremen HS

The defendant clearly failed to take reasonable steps to preserve information, which was duly pointed out by the Court as “reckless and grossly negligent.”  The consequences in this case were sanctions, notably from a new judge in a new jurisdiction that reached the same conclusion as we’ve heard numerous times over the last six months.

Another key point to me is that this is a relatively small employment case, yet the same preservation issues and consequences arise.  Is there a case that is too small for a legal hold?  Perhaps not, as evidenced in the first paragraph of Judge Cox’s opinion:

“Plaintiff has filed a motion for sanctions due to spoliation of evidence, alleging that defendant has failed to ensure that relevant documents were preserved during litigation and that this failure has severely prejudiced plaintiff’s case.”

Without reliable processes for preserving information — including routinely issuing timely and written legal holds — it is likely this phrase will be a common refrain in opinions for the foreseeable future.

References:

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Judge Scheindlin Gives Pension Committee a Minor Tune-Up

June 3, 2010

By Brad Harris

For those of you that follow this blog, we’ve been closely monitoring the developments this year out of Judge Shira Scheindlin’s courtroom in the Southern District of New York. The landmark Pension Committee opinion that she published in mid-January of this year was a watershed opinion about legal holds. She denoted a bright line that requires litigants to issue legal holds in a written form and addresses other points relating to document preservation.

Nothing major has changed when last week, the Judge made a couple of tweaks to her opinion in an amendment dated May 28, 2010. We owe a hat tip to Ralph Losey for posting his update about Judge Scheindlin’s amendment on his e-Discovery Team blog. Here is the amendment in its entirety:

The Amended Opinion and Order filed January 15, 2010 is hereby corrected as follows:

At page 10, lines 7-10 replace <By contrast, the failure to obtain records from all employees (some of whom may have had only a passing encounter with the issues in the litigation), as opposed to key players, likely constitutes negligence as opposed to a higher degree of culpability.> with <By contrast, the failure to obtain records from all those employees who had any involvement with the issues raised in the litigation or anticipated litigation, as opposed to key players, could constitute negligence.>.

These tweaks tone down a couple of specific points that had caused polemics to claim that Judge Scheindlin had “gone too far.” In summary, the changes include:

  • Clarifying that written legal holds need only be issued to “key players” rather than all employees; and
  • Failure to obtain records from key players “could constitute negligence” rather than is “likely” to be deemed negligence.

With this one-sentence change, Judge Scheindlin updated some language that likely didn’t meet her precise meaning. We applaud the Judge for continuing to review the Pension Committee’s language and ensure that it – to borrow some language from her opinion – “means what it says.”

Does This Amendment Change Anything?

Not really. In practice, the focus of reasonable and good faith preservation efforts have always focused on the key players, or those people who have knowledge and involvement of the issues at hand during the litigation.

It is unreasonable to expect that the Courts would have expected companies to consistently issue holds to all employees every time a “trigger event” occurred. This has been the reality since Zubulake and most likely this was simply tightening up one phrase in a weighty 89-page opinion.

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The Drumbeat Continues: Judge Turns Up the Heat with $25,000 Sanction

May 7, 2010

By Brad Harris

Merck Eprova AG v. Gnosis S.p.A. et al., 07 Civ. 5898 (S.D.N.Y. Apr. 20, 2010)

On April 20, 2010, U.S. District Judge Richard Sullivan hammered home the need for proper legal holds in a big way.  In a case that not only echoes Judge Scheindlin’s Pension Committee opinion, but takes it a step further, Judge Sullivan reinforces that the courts are becoming increasingly impatient with poor legal hold practices. Thanks to John Jablonski for his in-depth profile of the case.

This civil case was originally filed in June 2007 as a result of an alleged mislabeling of a nutritional ingredient.  The defendant, an Italian biomedical company called Gnosis, did a “haphazard” (p.7) job of meeting its discovery obligations.  Following a failed settlement agreement (any bets on whether the defendant wishes that had worked out?), the litigants entered into a year-long discovery battle.

After months and months of pushing by the Plaintiff, details emerged about what the Defendant did and – more importantly – did not do.  In a hearing on January 22, 2010, the Gnosis CEO admitted that the company had not issued “an explicit litigation hold, much less a written one.”  Further, employees continued to delete, “or at least fail to prevent automatic deletion of” relevant emails, and the company failed to produce responsive documents because the custodians decided that they were not relevant. (p.6)

Judge Sullivan relied heavily on Judge Scheindlin’s Pension Committee treatise, including the expectation that a written legal hold represents reasonableness and good faith when responding to a preservation obligation.  Gnosis’ CEO claimed he had instructed employees to “pay attention” to saving relevant documents. Yet the Court responded: “there is no doubt that Defendants failed to issue a written legal hold” (p.11) and ruled this failure a “clear case of gross negligence.” (p.12)

After failing in the discovery process in so many ways, it was time for the sanctions to be meted out.  The Court ordered that the Defendants should pay costs and attorneys’ fees (no doubt sizable given the months of wrangling involved).  Additionally, and a clear reflection of the Court’s growing impatience, Judge Sullivan fined the Defendants $25,000 “to deter future misconduct…and to instill a modicum of respect for the judicial process.” He continued: “Lesser sanctions…would simply be insufficient to achieve these purposes” (p.12).  Additionally, a decision on an adverse jury instruction is pending further discovery, as well as consideration for more sanctions “down the road.” (Footnote 10)

With Merck v. Gnosis, the expectation for timely written legal holds is once again reinforced, continuing the drumbeat promulgated by the Pension Committee, Rimkus v Cammarata, Crown Castle v. Nudd Corp and others. The behavior of this Defendant was egregious; and the consequences magnified by a described lack of respect being shown to the judicial process.

Reference: Jablonski, John, “Failure to Issue Written Litigation Hold: Costs, Attorneys’ Fees and $25,000 as Sanctions,” Legal Holds and Trigger Events Blog, April 26, 2010

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Second Verse Same as the First: Failure to Issue a Legal Hold is Gross Negligence

April 27, 2010

By Brad Harris

Crown Castle USA, Inc. v. Fred A. Nudd Corp., 2010 U.S. Dist. LEXIS 32982, (W.D.N.Y. Mar. 31, 2010)

Our friend Josh Gilliland of the Bow Tie Law blog posted last week about an important case out of the Western District of New York involving litigation holds.  (I highly recommend that you check out Josh’s entertaining overview “Raiders of the Lost Hard Drive” as well.)

The case, Crown Castle v. Nudd Corp., is a commercial litigation involving a product defect of a cell transmission tower. Crown Castle, a leading owner and operator of cellular towers, was suing Fred A. Nudd Corporation, one of the top manufacturers of transmitter towers.

During the course of the discovery process, the plaintiff made a number of missteps and mistakes.  After requesting information following the event that triggered the preservation obligation, counsel failed to monitor the approach used to determine where and what to look for in terms of responsive documents. Not surprisingly, the custodians missed a lot of information.  As discovery progressed, a great deal of responsive emails was subsequently uncovered, nearly half of the total eventually produced.  More troubling was that one of the afore-missing emails showed that there was a product defect. Oops.

The plaintiff also failed to take adequate steps to suspend the routine destruction of electronically-stored information, namely the automatic deletion of emails.  Older emails were automatically purged according to company procedure, resulting in spoliation. Double Oops.

Finally, the plaintiff failed to issue a litigation hold. In finding a “wholesale destruction” of responsive information, including that from key players, the Court concluded that the plaintiff “failed to take adequate measures to preserve electronic documents.”  Oops to the Nth degree.

The bad news is that the Court found the plaintiff to be grossly negligent for not issuing a legal hold. Another case aligning with The Pension Committee, an opinion that reaffirmed once again that absolute necessity to issue written holds as part of reasonableness and good faith.  The good news for the plaintiff (if there is good news after being found grossly negligent during discovery) — the court could not find evidence that the spoliation was done in bad faith.  A significant number of emails were able to be recovered from the recipients, and the Court could not determine that any missing emails were harmful to the defendant’s case.

There were plenty of things that didn’t go well for the plaintiff in this case, and their actions illustrated a laissez-faire attitude that many courts are frankly growing tired of.  And the bottom line is much of the bad behavior could have been avoided easily.  Implementing a legal hold using a simple tool like Legal Hold Pro would have raised awareness of the employees need to protect information pertinent to the case, allowed tracking of affirmative responses, and established a process for preservation that keeps a clear trail of accountability.  It’s clearly time for a new verse!

References:

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Rimkus v. Cammarata: Another Great Reason Organizations Need an Effective Legal Hold Process

February 25, 2010

By Brad Harris

Coming on the heels of Judge Shira Scheindlin’s Pension Committee v. Banc of America Securities opinion in January, a opinion was issued that centers around appropriate actions to preserve potentially relevant evidence.  The case is Rimkus Consulting Group Inc. v. Nickie G. Cammarata, et al., 07-cv-00405 (SDTX Feb. 19, 2010) out of the court of Judge Lee Rosenthal in the U.S. District Court for the Southern District of Texas.

To summarize the case, a group of employees left and filed a suit against their former employer, Rimkus Consulting, to release them from their non-compete agreements.  In a countersuit, Rimkus Consulting fired back that the former employees violated their non-competes and additionally made off with “trade secrets and proprietary information.” (p.4)

The Rimkus opinion is a direct parallel to Judge Scheindlin’s words in the Pension Committee opinion in which the Court is clear from the outset about its frustration regarding the distractions caused by spoliation of evidence:

Spoliation of evidence – particularly of electronically stored information – has assumed a level of importance in litigation that raises grave concerns. Spoliation allegations and sanctions motions distract from the merits of a case, add costs to discovery, and delay resolution. The frequency of spoliation allegations may lead to decisions about preservation based more on fear of potential future sanctions than on reasonable need for information. (p.1)

Although Judge Rosenthal has a different perspective based on the facts of the Rimkus case, many of the same principles and ideas are applicable.  Even though Pension Committee is little more than a month old when this opinion is written, the impact is marked.  References to Judge Scheindlin’s opinion are ubiquitous and Judge Rosenthal is deferential to the prior opinion as shown by the following reference:

In her recent opinion in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, No. 05 Civ. 9016, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010), Judge Scheindlin has again done the courts a great service by laying out a careful analysis of spoliation and sanctions issues in electronic discovery.  The focus of Pension Committee was on when negligent failures to preserve, collect, and produce documents – including electronically stored information – in discovery may justify the severe sanction of a form of adverse inference instruction. Unlike Pension Committee, the present case does not involve allegations of negligence in electronic discovery. Instead, this case involves allegations of intentional destruction of electronically stored evidence. But there are some common analytical issues between this case and Pension Committee that deserve brief discussion. (p.8-9)

Judge Rosenthal reinforces much of the preceding case law that has developed from Zubulake through Pension Committee. The Court affirms the need to preserve evidence at the time of the “trigger event” (p.66), the “unpersuasive” arguments as to the failure to preserve sufficiently (p.84), the lack of “safe harbor” in this case under Rule 37(e) because the destruction did not involve routine operation of computer systems (p.67).

The Rimkus opinion also provides insight into how a court goes about deciding what type and level of sanctions are appropriate, and Judge Rosenthal outlines the need to consider both the spoliating party’s culpability and the level of prejudice to the party seeking discovery. Her conclusions in this case depart from Pension Committee opinion and are, as one would expect, greatly influenced by the facts of the case.  Even though there was willful destruction of evidence, a significant amount of the incriminating evidence was recovered by the plaintiff. The Court was unwilling to issue an adverse inference instruction and rather chose to present the facts as they are and allow the jury to determine the implications of the defendants’ misconduct.

What does Rimkus Mean to You?

Much of it is in agreement with Judge Scheindlin with variances about how to handle sanctions, judicious use of adverse inference instructions and the definition of “gross negligence.”    The fact of the matter is that if you are at this point of arguing such differences, then you’re in trouble.  While the outcome of the Rimkus case is pending, I would daresay that the counsel for the defense would be rightfully worried about what the jury will conclude.

Whether you’re in Judge Scheindlin’s court or Judge Rosenthal’s, the courts are tired of dealing with these issues.  This is not likely to abate for some time.

  • The best way to avoid such risks and consequences? Have an effective litigation hold process in place which includes the following:
  • Issue a legal hold that is written and that clearly articulates the preservation process.  A written notification serves as a foundation for a defensible fact trail that will make it less likely for opposing counsel to bring spoliation into play.
  • Sending a written hold is not sufficient.  You must take proactive steps to ensure understanding and compliance on behalf of the custodians.  As in the Rimkus case, such action is a critical step toward isolating any “bad actors” that seek to inadvertently (or overtly) destroy evidence.
  • Ensure a means to effectively defend your actions and preservation process.  In the case of spoliation motions, a well-understood and consistently applied process will always support the litigant faced with defending their actions as being reasonable and in good faith.

The real takeaway here is that preservation and the use of legal holds continue to be a hot issue in the courts. With this level of notoriety, the courts are unquestionably becoming less tolerant of improper hold implementations.  As with the Pension Committee opinion, the “contemporary standard” for a legal hold is much more rigorous than even two months ago. Take appropriate steps now before you too become an example what not to do when it comes to legal holds.

Reference:
Jablonski, John, “Judge Rosenthal Issues Sanction’s For Failure To Preserve E-Mail Legal,” Holds and Trigger Events Blog, February 24, 2010

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“Arkfeld on Legal Holds” Webinar on Feb. 26th

February 24, 2010

D4, LLC and Legal Hold Pro present a one-hour program featuring Michael Arkfeld, Esq., author of Arkfeld on Electronic Discovery and Evidence and Arkfeld’s Best Practices Guide for Litigation Readiness and Hold, for a discussion of the impact of U.S. District Judge Shira Scheindlin’s recent Pension Committee v. Banc of America Securities opinion.

The webinar will address:
1. How the failure to issue a written litigation hold amounts to gross negligence
2. Handling custodian identification of responsive ESI
3. Key best practices for issuing a litigation hold

Co-hosting the event will be Joshua Gilliland, Professional Development Manager, D4, and Brad Harris, Director of Legal Products, Zapproved, and co-author of The Pension Committee Opinion: Judge Scheindlin’s Call to Action for Effective Legal Holds and a recent article on the subject for Corporate Counsel. (Download a complimentary copy of The Pension Committee Opinion white paper at www.legalholdpro.com/scheindlin).

Please join us on February 26, 2010 at 10am Pacific/1pm Eastern for this video webinar. There is no charge to participate in this event. Click here to register.

Presenter:
Michael R. Arkfeld, Esq. is considered one of the leading experts in the field of electronic document retention, discovery, production and admissibility of electronic information. Michael is the author of multiple books on law and electronic evidence, including Arkfeld on Electronic Discovery and Evidence, eDiscovery Best Practices Guides and The Digital Practice of Law,along with numerous articles on technology and the practice of law. Michael was a trial litigator for over 30 years and has been a primary organizer for many law related technology conferences in the United States and a presenter at over 200 conferences, seminars and training sessions.

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Just Published! An in-depth analysis of Judge Scheindlin’s Pension Committee Opinion

February 4, 2010

“The analysis of Judge Scheindlin’s Pension Committee opinion is good, clear and useful.  Harris and Jablonski ably summarize the case and suggest ways to apply the ruling to legal hold directives.  It’s a fine piece of scholarship.” — Craig Ball

We just published an in-depth analysis called “The Pension Committee Opinion: Judge Scheindlin’s Call to Action for Effective Legal Holds” which was written by Brad Harris and John Jablonski. The analysis interprets the opinion and its practical effect on the duty to preserve evidence in the United States and the contemporary standard for litigation hold processes developed by courts over the last few years. The 14-page paper, part of the Legal Hold Pro™ Signature Series, is available immediately at no cost at www.legalholdpro.com/scheindlin.

On January 11, 2010, Judge Shira Scheindlin issued an opinion in The Pension Committee v. Banc of America Securities case that strongly affirms the need for organizations to issue written litigation hold notices as part of a robust litigation hold processes. Following Judge Scheindlin’s seminal Zubulake opinions in 2004, this blockbuster 89-page opinion revisits many of the issues around legal preservation. The opinion concentrates on the weaknesses of the legal hold efforts of the plaintiffs in the $550 million securities litigation. Among the key rulings by Judge Scheindlin is that “the failure to issue a written hold constitutes gross negligence because that failure is likely to result in the destruction of relevant information.” (p.36)

“This is clearly a landmark opinion and since it was issued I have been receiving a lot of calls seeking an interpretation of the opinion,” said Jablonski, co-author of 7 Steps for Legal Holds of ESI and Other Documents (ARMA, 2009). “We worked extremely hard over the last two weeks to conduct a thorough analysis which we believe will serve as a guidepost to help corporations and others understand the real world implications of The Pension Committee opinion. The report includes a checklist of legal hold duties created or discussed by the opinion and recent cases that corporations and their lawyers can review to help meet the litigation hold expectations of the modern court.”

“John and I wanted to go beyond a play-by-play of Judge Scheindlin’s opinion and illustrate how this case will impact in-house legal teams and outside counsel,” said Harris. “Judge Scheindlin effectively redefined the ‘contemporary standard’ of litigation holds so we felt it was imperative to communicate that to the legal community immediately.”

Download a complimentary copy of “The Pension Committee Opinion: Judge Scheindlin’s Call to Action for Effective Legal Holds” white paper at www.legalholdpro.com/scheindlin.

About the Authors:

  • Brad Harris, Director of Legal Products, Zapproved Inc., is the author of the just published white paper “12 Myths about Legal Holds.” Mr. Harris is an e-discovery expert who has focused on the area of legal hold notification and compliance for the last five years, advising organizations and presenting regularly on the topic. He is a frequent author and speaker on e-discovery issues, including articles in Corporate Counsel, Metropolitan Corporate Counsel and KMWorld and presentations at leading industry events such as Legal Tech New York.
  • John Jablonski, Partner at Goldberg Segalla LLP, is a leading presenter about techniques and best practices involving litigation preservation holds. He is a co-author of “7 Steps for Legal Holds of ESI and Other Documents” (ARMA 2009) and also writes the Legal Holds and Trigger Events blog. He is also a regular contributor to Law Technology News, Law.com and a frequent speaker at legal industry events.

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“12 Myths about Legal Holds” Webinar on January 26 covers Zubulake to Judge Scheindlin’s Latest Opinion

January 19, 2010

Program Overview:

The one-hour program will examine common misconceptions about legal holds using recent case law, including an analysis of U.S. District Judge Scheindlin’s recent Pension Committee opinion.

John Jablonski and Brad Harris will look at problems that are frequently encountered within organizations that are failing to implement reasonable and good faith efforts when it comes to executing legal holds for discovery.

Download a complimentary copy of “12 Myths about Legal Holds” white paper at www.legalholdpro.com/myths.

Presenters:

  • John Jablonski, Partner at Goldberg Segalla LLP, is a leading presenter about techniques and best practices involving litigation preservation holds. He is a co-author of 7 Steps for Legal Holds of ESI and Other Documents (ARMA 2009) and also writes the “Legal Holds and Trigger Events” blog. He is also a regular contributor to Law Technology News, Law.com and a frequent speaker at legal industry events.
  • Brad Harris, Director of Legal Products, Zapproved Inc., is the author of the just published white paper “12 Myths about Legal Holds.” Mr. Harris is an e-discovery expert who has focused on the area of legal hold notification and compliance for the last five years, advising organizations and presenting regularly on the topic. He is a frequent author and speaker on e-discovery issues, including articles in Corporate Counsel, Metropolitan Corporate Counsel and KMWorld and presentations at leading industry events such as Legal Tech New York.

Webinar Information

After registering you will receive a confirmation email containing information about joining the Webinar.

Space is limited. Reserve your Webinar seat now at: https://www2.gotomeeting.com/register/685104731

System Requirements
PC-based attendees
Required: Windows® 2000, XP Home, XP Pro, 2003 Server, Vista

Macintosh®-based attendees
Required: Mac OS® X 10.4 (Tiger®) or newer

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Posted in Case Law, White Paper | Leave a Comment »

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