1

Best Practices in Legal Holds

Effectively Managing the e-Discovery Process

and Associated Costs

2

Stages of Litigation Hold

• Initiating the hold• Scoping the hold• Creating a repeatable process• Collection• Production• Documenting your process• Creating metrics

3

Initiating the Hold

• What does “anticipation of litigation” mean?– Create workflow and assessment team– Consistency is key

• Third-party discovery requests – finding the balance

4

Scoping the Hold

• The type and size of case• Volume of custodians and ESI may drive

collection decisions – Assess major types of ESI that are affected

• Unstructured workstation data• E-mail• Enterprise application data• Back-up repositories

– Assess custodians• Key Players• Non-Key Players

5

Create a Repeatable Process

• Standardize your Hold Notice– Specifically identify case, subject matter and

instructions to custodians• Automated deletion mechanisms

– Centrally deactivate or suspend– Anticipatory collection

• Hold Notice tracking and follow up– Manual tracking / periodic follow up– Automated litigation hold software

6

Collecting the Data

• Determine preservation and collection methods to be used– Centralized preservation and collection

• Keyword searching at collection point• Broad collection methods

– Custodian-reliant preservation and collection schemes

• Collection at inception of hold– Minimizes spoliation risk– Viable strategy for certain “key players”

• Collect after document requests are received– Potential to limit collection – Potential spoliation risk

7

Managing Your Production

• Reach agreement on specifications of production

• Try to produce as much in native as possible• Decide early on how you will address

privilege issues• Effect of Federal Rule of Evidence 502

– Designed in part to address privilege problems that increased due to e-discovery

– Also designed to harmonize rules on privilege waiver

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Managing Your Production: Rule 502

• Pre-Rule 502 Waiver Law– Requirements for Waiver

• Intentional• Carelessness• Any

– Scope of Waiver• Communication revealed only• Subject matter waiver

• Rule 502 Waiver Law– Disclosure in federal proceeding extends to undisclosed

communication only if:• Intentional• Disclosed and undisclosed communications concern same subject

matter• They ought in fairness be considered together.

– Inadvertent disclosure does not operate as waiver if:• Inadvertent• Took steps to prevent disclosure; and• Promptly took reasonable steps to rectify the error

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Document Processes

• Establish “Discovery Manual” – Defense value of showing a standard practice– Auditability of process

• Need to periodically audit• Establishing process discipline improves results

and accuracy• Periodically assess processes against

documented industry best practices (e.g., Sedona)

• Standardize hold notice guidance and documentation

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Metrics: why you need them ?

• Crucial to establish metrics• Provides business case for in-house

technology/tools• Helps you determine whether you are getting a

true value• Will allow you to budget for e-discovery in the

future• What to track?

• GB per month/case/division• Processing cost per month• Review rate

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Questions ?