Month: March 2016

Keep Your Legal Hold Alive

Everyone who has been in a personal relationship realizes sooner or later (hopefully sooner for everyone’s mental health!) that starting the relationship is really the easy part – maintaining a healthy and productive relationship takes time and especially effort.  On the part of both involved…or trouble looms, “and I mean Trouble with a capital T” as an old blues tune described…where else, other than a syrupy country ballad?

When you issue a legal hold/litigation hold, whichever your preference may be, you are committing to a relationship.  But this relationship is not necessarily mutually-committed.  Assuming you are a legal hold administrator, either as an attorney, paralegal or corporate employee, you have the authoritative attorney (responsible attorney) to work with to ensure the legal hold remains current; then there are the custodians – they didn’t buy into this relationship, and must be in turn cajoled and driven to comply with all requirements, be responsive and engaged; outside counsel may be involved, so they need to be educated about the content and intent of the legal hold; IT needs to be involved so they are prepared for collection and possession/production demands; and you, the ever-hardworking, oppressed and set-upon legal hold administrator, must be committed to each of these component groups in turn.  Some of the terms of that commitment include:

  • Sending reminders of ongoing legal holds to all involved parties;
  • Working with attorneys and outside counsel for periodic certification as to the accuracy and completeness of the legal hold;
  • Providing updated legal holds as conditions change;
  • Tracking custodian responses, and, very importantly, changes in custodian employment status – when they leave the company, who takes charge of their data, who replaces them, etc.
  • And, being prepared to be deposed over your legal hold maintenance procedures.  Yes, you.

This is Commitment with a capital C, to avoid that “capital T” Trouble. It’s work for everyone, no doubt, but the more sophisticated and especially the more consistent you become at doing what needs to be done, the more favorably your work will be viewed, within the company and within the courts.

Next to come – releasing a hold…not just turning out the lights and shutting the door.

If Your Legal Hold is Privileged, Is All Content Privileged?

Corporations often seem to produce documents like chickens produce eggs – frequently, randomly and sometimes without much obvious forethought.  And they (sometimes, not often enough) then try to protect them in some manner or another.  So, it would seem, do attorneys, although one would think there is a bit more forethought in what they prepare; and there is usually a lot more rigor in thinking about what they keep.  So what about legal holds – once issued, are they protected documents…is it “hands off” to opposing counsel?  Or are legal holds just another discoverable piece of paper?  I can think of a couple of rulings that appear support legal holds either being privileged attorney-client documents, or protected as attorney work product.  All well and good, for arguments sake.  But what about the new FRCP guidelines that emphasize more transparency?  It seems to me (as a non-attorney and not providing advise) that a company or firm can be quite comfortable in following one of these paths without “shame or blame”; they are simply protecting themselves and/or their client by not disclosing strategy, intent or potentially opening themselves to broader claims in a matter.  But…there are always “but’s”…what about these two scenarios?

Claims against you in court of spoliation – the contents and timing of a properly-posted legal hold pose the best first-line defense against claims of spoliation.  If opposing counsel should make such nefarious (hopefully!) claims against you, you can relinquish privileged or work product status, and present the legal hold can as proof of your honest intent and effort to comply with the scope and requirements of the matter as presented.  By the time you have reached this unfortunate point, arguments based on strategy have long been presented – opposing counsel and the court knows where you are at in the matter, or should if everyone is paying attention.  So this scenario seems to allow for both ‘yes’ and ‘no’ answers to whether legal holds are protected…or the much-preferred ‘it depends’.  Everyone likes a little wriggle room!

Secondly, and again with the ‘wriggle room’ attitude – while a legal hold document in itself may fall under privileged or work product status, what about some of its contents?  I know that may seem a bit ludicrous – how can a document be protected, but not some of its contents, you may ask.  Here I defer to a good argument posted by Craig Ball some time ago, specifically regarding search terms, in response to this argument that search terms are privileged.  One may read these opinions and take sides as you wish.  My thought is that there is some middle ground, especially as TAR discovery/review capabilities have become commonplace.  Search terms have been traditionally used in preparation for developing strategy for a pending matter, or to actually find out what a company/client may possess, may have written or said that needs to be reviewed before you even go forward with meet-and-confers and beyond; in other words, to see what basis there is for an action, either on your side or against you.  In addition, TAR process now can utilize search terms to “train” your discovery software to provide the most relevant data possible.  In either case, you would not want to provide those search terms to opposing counsel.  But, once you have established your data collection, it makes perfect sense to share the search terms used in that collection with opposing counsel.  This openness falls well within the new FRCP guidelines for more transparency and cooperation, which are also terms to warm the cockles of the most hard-hearted judge (such as the best judge ever on Law and Order).  Fran Lebowitz   Search terms should be part of every legal hold notice, but I believe they should also be available to opposing counsel.  Maybe a little sharing can avoid later headache.

Email Now, Pay Later

As eDiscovery methods and tools become more and more sophisticated, and counsel and corporations more willing to spend time and money on more extensive searches, the importance of not just what you write in emails, but the fact that you wrote it…and saved it, becomes more obvious.  So why do so many people insist that they just have to keep their email messages for so long, when embarrassing or harmful results such as this can happen?

Perhaps the answer lies in the time-honored belief that people hold about the email function itself – that email is just another record repository, just like their shared drive at work, or hard drive at home.  People tend not to see email systems (Outlook, for instance) as a messaging tool; they regularly treat the message content as a record in and of itself.  Try telling employees to not put business content in the message, that they should point the recipient to a document residing in actual record repositories, such as a SharePoint site or shared drive folder; I will bet you they will say, “Too much work, are you crazy?”  Which leads me to another possibility – is the way we use email linked to laziness?  It’s so easy to just put the business content in the email, send it and save it forever.  And it’s just as easy to end up on the wrong side of a legal decision because of it.

So what is the best retention recourse – keep emails for just a number of days – 30, 60, 90 days – a few years, 2, 5, 7 years (the most common time frame when companies choose a year) – or forever?  Or do you allow employees to just delete emails…whenever? (as I type that, a shudder shoots up my spine…and opposing counsels would salivate!)  These are all surprising hard questions for a company considering imposing an email retention policy to answer satisfactorily for everyone.  And will be a topic to address in more detail another day.  For now, just considering why we treat email as badly as we do puts enough of a cloud on an already gloomy Houston day.

No “Failure to Communicate” Allowed

The Smithsonian Magazine always seems to have a wide range of interesting and entertaining articles. I enjoyed reading one excellent article in the March 2016 issue on the coming of age of the telephone; so many concerns expressed at the time amazingly paralleled those expressed today – read “texting” for “telephoning” – where people worried that the telephone would cause less personal interaction, morals and manners would collapse, the ability and gracefulness of letter writing would disappear, on and on…basically, our society would collapse. Sound familiar? And what in the world does this have with my stated interest in writing about legal holds? In a word…communication. Or better, how to communicate, when and to whom.

It would seem to anyone involved in discovery management and legal hold administration that, as the Sedona Conference states, whenever litigation is reasonably anticipated, threatened, or pending against an organization, that organization has a duty to undertake reasonable and good faith actions to preserve relevant and discoverable information and tangible evidence. Those actions include issuing a legal hold to appropriate custodians to identify, retain and be able to produce relevant information. In other words, communicate to those custodians that a legal or regulatory matter may occur, and they basically are to save relevant information. Simple enough, except it seems some organizations still don’t get it, as shown in a recent Bow Tie Law’s Blog article or here as part of a party’s problems as noted by Ralph Losey, among others.

But we all know there’s more to legal hold communications than just issuing the hold and forgetting about it, right? Well, maybe not…so let’s look at some other points where it is essential that you must communicate, within the company or firm and outside of it. The estimable Craig Ball (a great adjective for his work, I think he would agree!) covers the communication issue among other here. The assumption here is that your company/firm has a legal hold administrator beyond the attorneys responsible for each hold.

Custodians:

  • Replies from custodians that they do or do not have relevant information. Most legal hold management software includes this function as a basic feature.
  • Reminders to custodians that a legal hold is still active. Again, this is an auto feature in many legal hold software apps.
  • Legal hold administrator needs to be informed by HR of any employment changes related to custodians.
  • Notice of legal hold release must be sent to custodians.

 

Attorneys (in-house): This is so important for a successful legal hold program, but so often overlooked.

  • Periodic verification from the responsible attorney to the legal hold administrator that the legal hold is still active and relevant; attorneys need to be in touch with clients, aware of status of the matter, any court or mediator decisions, etc.
  • Responsible attorney certification – attorney periodically certifies that the named custodian list continues to be correct, the matter description is current, as well as other details stated on the legal hold. This is a very important process and includes detailed steps for consistent completion.

Outside Counsel:

  • Outside counsel certification and verification – one of the most overlooked communications, especially for corporate legal departments. In-house counsel simply must have periodic conversations with outside counsel to discuss items similar to those under attorney certification, but usually on a higher level, but which is a way to get outside counsel certification as well. Outside counsel will probably have the best insight into matter status, can advise whether the legal hold has addressed the proper custodian departments, even though they most likely won’t know the actual custodians, and can simply keep the attorney up to date on progress. Very importantly, this communication process will help keep outside counsel focused on your matter. More on outside counsel inter-action and communications here from Joe Mann at Applied Discovery.

And again, in-house counsel needs to communicate back to the legal hold administrator on these conversations. Don’t leave the person doing the grunt work out in the cold!

Keep in mind, however, that communications should never be limited to a bullet point list; the points here just touch on some of the highly-relevant areas. Attorneys, outside counsel, legal hold administrator and custodians must have open dialogue to ensure the legal hold process is viable, current and (so important to the courts) consistent, within a legal hold and for the entire legal hold program. Make communications a priority – asking an attorney if there is any change in a legal hold, and getting a simple “No” is not an intrusion on that attorney’s time; rather, the attorney and administrator should both be gratified that everyone is actively engaged. The good old CYA is always a good thing.