by Nik Balepur on August 13, 2015
Since the landmark Zubulake decisions, the duty to preserve has been a fixture of litigation in the United States, but the process of issuing a legal hold—what details should be included, when you should send it, how to follow up, and so on—varies from organization to organization, leading to controversies we’ve seen in other cases over the years.
In Treppel v. Biovail Corp., 249 F.R.D. 111 (S.D.N.Y. 2008), the Southern District of New York found that Biovail had failed to institute a well-rounded preservation program and follow up on instructions to preserve issued to their CEO and vice president of finance and corporate affairs.
Though Biovail claimed that they had instructed these key players to preserve potentially relevant evidence, it was unclear how—or whether—those instructions were followed. The CEO in particular had, for several years, a unique practice of downloading his email backups directly to his personal laptop, at which point the data was deleted from Biovail’s servers. As a result, the court ordered a forensic search of the CEO’s laptop at Biovail’s expense—and several months after initial discovery was closed, it began again.
Fortunately, answering a few important questions before issuing a hold can help you solidify your process and get better results. So, when examining your legal hold process, ask yourself…
1. Do employees know the consequences of not complying?
We talked about Biovail and their CEO, but let’s simplify the scenario. Pretend you’re Oscar in accounting. Do you know what a legal hold is? Possibly. Do you know the consequences of failing to comply with said legal hold—or better yet, what’s considered “failing to comply?” Probably not.
It’s important to understand that not everyone knows what a legal hold is or why it’s important—but it is absolutely necessary to ensure they know the implications of an issued legal hold. When it comes to preserving data, education and risk are conversely related; the better your employees understand the consequences, the less chance there is of making a big mistake.
Before issuing your hold, give it a proofread to make sure it clearly explains the dos and don’ts and defines what behavior falls under the “failure to comply” umbrella, such as automatic deletions or regularly scheduled clean-ups.
Tip: Regardless of who drafts the hold notice—outside counsel or your team—it should come from someone recognized as having authority within the organization. A recognizable name will mean greater effectiveness—especially in smaller organizations.
2. Do employees know what they need to preserve and why?
Conveying the duty to preserve may be the bread and butter of a hold notice, but it’s hardly a full meal. Give the who, what, and when up front by including:
- A brief but informative summary of the matter
- Categories of records that need to be preserved (with examples)
- Date ranges for the case
Providing your custodians these details will not only ensure they know what to preserve, but will also give them context around the matter and help them provide better information in the questionnaires and interviews.
Tip: If you use legal hold software such as Relativity Legal Hold, set up templates for all of this information. It’ll save you valuable time, while also ensuring you don’t forget these important details.
3. Is the questionnaire asking the right questions to ensure we’re covering the full scope?
When writing questions for your legal hold questionnaire, don’t stop at the obvious, like “When was your earliest involvement with Project X” and “Where are your documents stored?” Your custodians know more about who’s working on certain projects than you, so take advantage of that information by asking one more simple question: “Who were the stakeholders of Project X?”
Asking who, and not just what, may uncover more custodians with potentially relevant information than were initially on your radar. If it doesn’t, answers to this question will verify that you do indeed have all your key players.
Tip: HR is another good resource for identifying key custodians, so team up with them to get a holistic view of past org charts—they might point you to custodians who used to be, but are no longer, in a role that’s important to the case, or they might offer insight into important third parties, like consultants.
4. Can this whole process be easier?
Creating, sending, and tracking legal holds involves a lot of moving parts, and taking advantage of technology can help you keep tabs on those elements. For example, if someone says they have a company-issued phone, you can send automated email alerts to IT, so they know to log it as a potential device to be collected from; or, you can set up conditional rules on your questionnaires so a follow-up questionnaire is sent only if the custodian responded “Yes” to being involved in Project X.
Some solutions, including Relativity, also integrate with HR systems, so you can add and track custodians and automatically send reports to stakeholders, like IT, HR, or outside counsel.
Nik Balepur is a member of kCura's advice team. With 10 years of experience managing legal and technology projects, he is well versed in maximizing operational effectiveness for e-discovery.