Date post: | 29-Nov-2014 |
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Technology |
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Litigation holds are a critical part of the eDiscovery process, and
conducting them successfully ensures proper preservation of
evidence and guards against spoliation.
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With ever-increasing volumes of Electronically Stored Information
(ESI), litigation holds are becoming more difficult to conduct
efficiently and well.
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There are many examples of litigation holds gone wrong,
notably the 2012 case 915 Broadway Associates LLC v. Paul,
Hastings, Janofsky & Walker, LLP, during which a litigation hold
was issued and blatantly disregarded.
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There are many examples of litigation holds gone wrong,
notably the 2012 case 915 Broadway Associates LLC v. Paul,
Hastings, Janofsky & Walker, LLP, during which a litigation hold
was issued and blatantly disregarded.
Spoliation concerns were raised by the defendant Paul Hastings,
and ultimately the complaint was dismissed, and the judge
granted defendant’s motion for sanctions against the plaintiff.
what went
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SO in the 915 Broadway case
WRONG
WHAT Relevant electronic files were intentionally
deleted by key custodians.
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went WRONG
?
WHAT Automatic-delete functions on email accounts
were not suspended.
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went WRONG
?
WHAT Back-up tapes with potentially relevant
data were destroyed.
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went WRONG
?
WHAT Email servers were replaced, destroying all
deleted emails from two key witnesses.
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went WRONG
?
What Does the Law Say?
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This case was decided by the New
York Supreme Court in February 2012.
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NY law requires a party to
preserve evidence that may
be relevant to pending or
reasonably anticipated
litigation.
What Does the Law Say?
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NY law requires a party to
preserve evidence that may
be relevant to pending or
reasonably anticipated
litigation. Once a litigation hold notice
is issued, routine document
retention and destruction
policies must be suspended
and relevant documents
preserved.
What Does the Law Say?
To ensure an effective litigation hold,
here are four guidelines to follow.
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What Can Be Learned?
Hear Ye, Hear Ye!
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It is critical to send out a litigation hold
notice when a party reasonably
anticipates litigation.
#1
Did You Get the Memo?
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Merely distributing a litigation hold
is not enough. Confirm that each
person received and comprehends
its meaning and instructions.
#2
Engage the IT department in the litigation hold process
early and often. They are a vital component in the
litigation process within most organizations.
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PUT THE IT IN LITIGATION HOLDS
#3
Trust but Verify
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Even if the IT department and
other key players state they
have suspended automated
deletion practices, and have
and are preserving documents
properly, it must be verified.
The case depends on it!
#4
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It is not sufficient to simply send a
litigation hold notice and assume
it will be followed.
To prevent cases from being dismissed,
or spoliation charges being brought,
litigation holds must be actively managed
and overseen.
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For a more detailed discussion of the
915 Broadway v. Paul Hastings case,
please see the article here.
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www.d4discovery.com
800.410.7066