Necessary Ingredients for Seem Legal Holds
Whenever e-discovery and healthcare litigation and investigations show up, you are able to more often than not rely on the subject to incorporate attorney at law of sanctions. It is not any sort of accident. There’s been an uptick both in the level of filings requesting discovery sanctions and orders granting individuals demands. And, for much better or worse, these trends don’t appear to become vulnerable to abating.
The most typical ground of these filings? Failing to consider reasonable steps to preserve potentially relevant documents and knowledge. Lawyers that aren’t conscious of the upkeep obligations may expose their customers, and themselves, to significant sanctions simply because they didn’t take appropriate steps underneath the conditions to make sure that potentially relevant details are preserved.
The very best protection against the specter of sanctions would be to institute a legitimate hold-i.e., to consider prompt, affirmative, and reasonable steps to make sure that the consumer is correctly preserving potentially relevant information. While you most likely know, the legal hold begins with the prompt distribution from the eponymous legal hold memo. (Take care not to consider this memo because the beginning and finish-it’s easier to consider the legal hold less just one box to become checked, however a procedure that spans the existence associated with a particular matter.)
At its most fundamental, the memo may be the directive delivered to each individual with control of information that’s inside your client’s possession, child custody, or control-a/k/a a “custodian”-that explains for them (in plain British-for instance, steering obvious of words like “eponymous”), the who, what, when, why, and just how of upkeep.
Obviously, the legal hold memo should staying away from delivering the content that everybody that may have anything must save everything forever. While that could be simpler within the short-term, it’s neither practical nor in almost any healthcare company’s welfare to try and save everything. Preserving information includes both soft and hard costs, varying from space for storage and operability laptop or computer systems towards the business interruption and need for getting to battle through a constantly-expanding ocean of information.
Therefore if the “save everything” approach has gone out, what if the legal hold notice say? Let’s discuss the who, what, when, why, and just how, that will obviously rely on the conditions and also the particular debate at issue:
- The Who. To figure out who needs to receive the legal hold notice, you’ll need to invest some time at the outset to figure out what the matter is about and what people have control over the relevant documents or systems. If you have a complaint, demand letter, or subpoena, start there. With that rough sketch, it’s a best practice to then follow-up with interviews to talk with key players, figuring out not just what their perspective is on the merits of the controversy, but also where potentially relevant information might reside. And when you are doing this, don’t forget that your employees are just one possible group of custodians. There may be third parties—lawyers, accountants, etc.—that need to receive the legal hold notice.
- The What. Obviously, you should take care to explain what the dispute is about and what categories of information need to be preserved. The goal, of course, is to arm the recipients of the hold with the information they need to realistically determine whether any particular piece of information is subject to the hold. This is the part of the memo that should be edited ruthlessly. Does the custodian need to know the case style or where the lawsuit is pending? Will the custodian understand what “misappropriation of trade secrets” means, or should you just say that Company X claims we stole secret information about their Shiny New Product? In terms of the categories of information that should be preserved, good practice is to define these broadly, so that the custodian does not have to make a series of fine distinctions to figure out whether a particular document needs to be preserved.
- The When. The custodians should know that their immediate compliance with the hold is expected. But the timing of things also comes into play in terms of the preservation obligation. Is this a dispute where you only need documents from months or years ago? Or is potentially relevant information continuing to be generated? It’s important to educate custodians to the nature of the obligation and how it might impact their decision-making when it comes to disposing of any information.
- The How. One of the frustrating parts of e-discovery is that sometimes well-intentioned custodians can end up altering the data that they are supposed to be preserving. Seemingly harmless steps, such as moving the information to a new location, for example, can alter the metadata of that document. In those cases where that kind of metadata is relevant, an adversary can assert a spoliation claim simply based on the effort made to meet its preservation obligations. The more cautious approach is to advise the custodians to preserve the data that they have “in place,” so that if necessary, you can engage more experienced technologists to extract the information in a way that won’t alter the metadata at all—that’s what people typically mean when they refer to a “forensically-sound collection.”
- The Why. The legal hold memo should also explain why preserving data is important. In addition to holding onto information that could help your case, preserving potentially relevant information avoids costly battles about spoliation, adverse inferences, monetary penalties, and, in the case of Government investigations, the possibility of an obstruction of justice charge.
Obviously, no legal hold memo is ideal. They’re, by necessity, issued at the start of the litigation lifecycle, once the landscape from the dispute can always be hazy and undefined. So with regards to crafting the first legal hold memo, don’t let perfect end up being the enemy from the good. The conventional enforced through the discovery rules is among reasonableness, not perfection.
Once you’ve sent the first legal hold, remember your projects isn’t always done. Weight loss concerning the dispute was discovered, or in mind from the litigation shifts, the legal hold ought to be revised as necessary. Furthermore, even if things don’t change, the very best practice would be to help remind custodians concerning the upkeep obligations periodically throughout litigation or perhaps an analysis, since the duty to preserve is definitely an ongoing one.