EDISCOVERY:ARE YOU PREPARED?

Dennis P. OgdenBelin McCormick, P.C.

666 Walnut Street, Suite 2000Des Moines, IA 50309

Telephone: (515) 283-4618Facsimile: (515) 558-0618

dpogden@belinmccormick.com

Preparing for Litigation involving E-Discovery

1. Develop a records management policy

2. Maintain current and historical organizational charts

3. Identify subject matter experts

4. Create a data map listing ESI by category location and custodian or steward, including details on storage accessibility, associated retention policies and procedure

Preparing for Litigation involving E-Discovery

5. Assess retention periods under a good faith standard

6. Develop a legal hold policy and procedures

7. Develop preservation plan

8. Develop a contingency plan for suspension of auto delete and recycling of backup tapes

9. Take into account hardware and software upgrades

Preparing for Litigation involving E-Discovery

10. Develop exit procedures for departing employees

11. Plan for e-discovery with cloud or third-party providers

12. Evaluate and select e-discovery vendors in advance

13. Audit preparedness for e-discovery

Legal Holds

• Legal holds are one of the most important, and sometimes most difficult, phases in the e-discovery life cycle

• Definition: Legal hold – an organization’s affirmative acts to preserve ESI and paper documents once a duty to preserve is triggered

Legal Holds – Are they Necessary?

Eighth Circuit Decisions:

1. Strutton v. Mead, 668 F.3d 549 (8th Cir. 2012) (District court did not abuse discretion when it refused to sanction party that failed to instigate a litigation hold and data was lost in a consolidation of computer systems – there was no intent to destroy the data).

2. Gallagher v. Magner, 619 F.3d 823 (8th Cir. 2010) (District court was within its discretion not to sanction a city who failed to institute a litigation hold permitting routine deletion of documents – over 1,000,000 produced three month before trial).

Legal Holds – Are they Necessary?

Federal District Court Cases:

3. Cedar Rapids Lodge v. JFS Development, 211 W.L. 5975127 (N.D. Iowa Nov. 29, 2011) (data lost during system upgrade and laptop repairs – despite preservation letter from opposing counsel, no sanctions because there was no showing missing files would be different or more helpful than those produced).

4. Rattray v. Woodbury County, Iowa, 761 F. Supp. 2d 836 (N.D. Iowa 2010) (Adverse inference instruction regarding destruction of a portion of a video recording would be permitted with rebuttal when defendant was on oral notice that the video was relevant to possible litigation).

Iowa – no litigation hold cases yet.

Other Jurisdictions – different rules depending on jurisdiction and court.

Goals of Legal Hold

1. Avoid spoliation – the intentional destruction or alteration of relevant evidence

2. Avoid satellite litigation

3. Provide repeatable and defensible processes for identifying trigger events

4. Providing repeatable and defensible processes for ensuring that relevant information is preserved

Steps for Implementing Legal Holds

1. Evaluate trigger events• The duty to preserve arises when a

party should reasonably anticipate litigation or investigation. Zubulake v. UBS Warburg, 220 FRD 212, 216 (SDNY 2003) (Zubulake IV)

Legal Holds – Trigger Events

Sedona Conference Commentary on Legal Holds: The Trigger and the Process, Sedona Conference Journal, Vol. 11 (Fall 2010)

“A duty to preserve is triggered only when an organization concludes (or should have concluded) based on credible facts and circumstances, that litigation or a government inquiry is probable.”

(p. 272).

Legal Holds – Trigger Events

1. Service of complaint or letter of investigation

2. Discovery demands, including subpoena

3. Court orders

4. Statutory or regulatory requirements

5. Contract requirements

Legal Holds – Potential Triggers

1. A preservation letter or other written notice from opposing counsel

2. Pre-litigation discussions, demands and agreements (including verbal ones) with opposing party or its counsel

3. Other facts or circumstances that would put a reasonable person on notice of potential litigation• Incident reports• Notification of insurer/indemnitor of claim• Hiring a lawyer, investigator, expert • Complaint filed with regulator (e.g., EEOC, ICRC)• Demand to preserve by your client

Legal Holds – Steps to Preservation

1. Written legal hold notices

2. Affirmative preservation measures

3. Establish a time for release of the legal hold, i.e., statute of limitations date, or conclusion of legal proceedings.

Legal Holds – Written Notices

1. Issue to persons likely to possess or control potentially relevant information, i.e., document custodians (those that have had some involvement in or knowledge of the underlying events) and data stewards (those responsible for managing ESI and the company’s information systems).

2. Issue hold notices to third parties in possession of information under the company’s control

Legal Holds – Written Notice

Effective written notices:

1. Proper recipient (Who are the key players? Who are others likely to have relevant information?)

2. Clear definition of information to be preserved

3. Clear description of the procedures for preservation to be undertaken

4. Clarity with regard to the period of time for which information should be preserved

Legal Holds – Affirmative Preservation Measures

1. Identify sources of potentially relevant ESI, both custodial and non-custodial, to identify inaccessible information and evaluate relevance

2. Evaluate need to suspend auto delete or purging functions, or document retention policy

3. Evaluate the need to copy and save data that could be inadvertently or intentionally altered or destroyed

4. Evaluate need to preserve newly created ESI on a going forward basis

5. Document the steps taken and log the chain of custody for ESI collected to defend the process

Team Approach is critical to proper litigation hold and preservation efforts

Reduce costs with:• Competence – business personnel, lawyers

– in-house and outside, IT personnel, third-party experts

• Cooperation • Developing technologies

• Predictive Coding• Blogs• Publications