With litigation holds, there's no second chance; as movie producers say, it's 'one-take Jake'

When the Pittsburgh Steelers and Green Bay Packers meet in Super Bowl XLV, the referees will have one advantage that e-discovery specialists do not—the luxury of instant replay.  If an erroneous call is made on the field, a team can toss the challenge flag and officials can have a second look via instant replay.  But e-discovery professionals get no second chances when it comes to litigation holds—which may have a much greater impact on a big case than any single penalty will have in Cowboys Stadium on Sunday. 

A litigation hold, also known as a legal hold notice or preservation order, is a directive issued by parties to litigation to preserve electronically stored information (ESI) and documents that are potentially relevant to the matter in dispute. The hold should be issued at the latest when a lawsuit is filed, or whenever litigation is “reasonably anticipated.” 

The legal hold play book
There are certain basic requirements of a proper legal hold notice.  It should outline in writing the subject matter of the dispute or investigation in order to indicate what material might be relevant. 

The notice should list all potential locations of ESI, and include clear instructions regarding what ESI must be preserved and how. Assuming no particular expertise on the part of the recipient as to how to implement the hold, the notice should provide specific guidance on preservation procedures, and should offer solutions to foreseeable problems or questions the recipient may have. 

"On the issue of preservation holds, relying on an existing document destruction policy could be a huge mistake. The court will generally look for documentation establishing an independent, good faith attempt to establish and maintain a process that will both identify and preserve potentially relevant and discoverable ESI," said Judge Peter Blanc, Chief Judge of Florida's 15th Judicial Circuit.

Pick key players
When surveying the range of potential ESI sources—including individual employees, network locations, databases, hardware devices and other storage locations—individuals who are knowledgeable about the structure of the data systems must be involved, as well as people familiar with the legal claims and scope of the matter.  This ensures that all issues and data relevant to the litigation are identified.

In a corporate setting, often the best approach to identifying ESI sources is to interview key employees and ask them to name other individuals who are likely to have potentially relevant ESI in their possession.  An organizational chart may be useful in identifying employees who, based on their job responsibilities, may have such ESI.

Often, a contact person is identified to the recipient of the notice who can respond to questions about implementing ESI preservation measures appropriate to the case. Also, there is frequently a staff training session that takes place where the issues and procedures involved in preserving documents are explained to potential document custodians.

“Make sure that you understand the issues and have a consistent approach,” said Ralph Barber of Digital Legal Tampa. “Whether that means assigning one individual as the point man, or that means educating all individuals with the power to assign litigation holds, there must be an effective, consistent path.”

Track your performance
It is important to keep reliable records not only of what preservation actions were taken, but when and why.  Litigation hold practices are usually challenged if a question of spoliation of evidence arises. 

"My experience has been that the more complex the discovery request, the better off the parties are working cooperatively to fashion a discovery process that is efficient in both cost and process, as well as proportionate to the case," said Judge Blanc.

It is also important to revisit the litigation hold throughout the matter, and alter the hold once new complaints or discovery requests are filed.

And, of course, budgetary constraints must be considered. Cameron Monaco, a litigation consultant at the Denver, Colo., office of Wheeler Trigg O’Donnell LLP, said, “Cost is the most important challenge.” 

Even if a litigation hold is issued properly and on time, the parties on all sides of the matter almost always face cost issues once it becomes necessary to identify, collect, preserve and produce ESI, usually through a document review project.

The calls an e-discovery specialist makes are in many ways more important than the calls on the gridiron.  Most often, as in a pivotal play, the right rulings are made and no adverse consequences follow.  In the rare occasion those calls go awry, disaster may strike.  In football you throw a red flag, in litigation you may have to wave a white one.

Further information on preservation holds is available to CEDS certification candidates, who receive the full CEDS Exam Preparation Manual as part of their exam registration. For more information on the certification exam, which may be taken at nearly 600 ACEDS-Kryterion Testing Centers worldwide, visit aceds.org/certification.

This article is adapted from “Issuing Preservation Holds,” a topic covered by the Certified E-Discovery Specialist (CEDS) Exam Preparation Manual, and treated in the CEDS certification examination.

Additional reporting by Eric Hayden and Zachary Parkins, ACEDS Staff.