Privilege, Evolution, and Key Takeaways – Hold On Series, Part 7

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https://xactdatadiscovery.com/articles/tools-you-can-use-for-legal-holds/A multi-part series on achieving effective legal holds, including relevant case law, content to include, processes to employ, best practices to follow, available tools to leverage, and more

In the first Part of this series, we reviewed an assortment of recent cases illustrating the potential dangers associated with ineffective or nonexistent legal holds.  In the second Part, we reviewed the duty of preservation and the triggers to that duty and hold issuance.  In the third Part, we reviewed the standard elements of an effective litigation hold.  In the fourth Part and the fifth Part, we reviewed the importance of defined hold processes and policies for the five key hold activities.  In the sixth Part, we discussed the tools you can use for these activities.  And, in this final Part, we will discuss privilege, evolving technology, and key takeaways.

Legal Holds and Privilege

In most situations, litigation hold notices are communications from an in-house counsel or an outside counsel to employees of an organization, which brief them on a legal situation and the need to hold materials for it.  As such, hold notices are typically considered both privileged attorney-client communications (because they are the communication of legal guidance) and protected attorney work product (because they reveal the attorney’s thinking about the matter).

This general principle can be seen applied in numerous cases.  For example, Gibson v. Ford Motor Co., 510 F. Supp. 2d 1116 (N.D. Ga. 2007) includes the following passage discussing a request for the production of hold notices issued by the Defendants:

Plaintiffs request the document sent to Defendant’s employees instructing them not to destruct certain kinds of documents required to be maintained as a result of this litigation. . . .  In the Court’s experience, these instructions are often, if not always, drafted by counsel, involve their work product, are often overly inclusive, and the documents they list do not necessarily bear a reasonable relationship to the issues in litigation.  This is not a document relating to the Defendant’s business.  Rather, the document relates exclusively to this litigation, was apparently created after this dispute arose, and exists for the sole purpose of assuring compliance with discovery that may be required in this litigation.  Not only is the document likely to constitute attorney work-product, but its compelled production could dissuade other businesses from issuing such instructions in the event of litigation.  Instructions like the one that appears to have been issued here insure the availability of information during litigation.  Parties should be encouraged, not discouraged, to issue such directives.  Defendants are not required to produce these materials.

In some situations, these protections may not be afforded, however.  For example: if the hold notice is sent by a non-lawyer executive rather than counsel; if the hold notice specifies that it is not confidential and should be shared with co-workers; or, if spoliation has taken place, requiring further discovery about the reasonableness of preservation efforts.

Technology Evolution in Litigation Holds

Evolution is Endless

We have touched a few times in this series on the diverse range of potential sources that now exist and that must be considered for coverage by the hold.  In addition to remembering to think about newer sources like mobile devices and social media and about the deliberately-expansive definition of “documents” used by the rules, you must remember that technology is constantly evolving.

Messaging services like WhatsApp were insignificant just a few years ago, and now 72% of American adults use them.  Until recently, auto-deleting messaging apps did not exist, and now, they are used by 56% of smartphone owners ages 18-29.  No one got in trouble for failing to preserve text messages, until they did and did and did.  The same thing was true for social media, and it will soon be true for some other newer technology (probably a messaging or collaboration app).  Technology will continue to leap forward, and legal expectations will follow slowly behind.  You won’t be expected to consider a newer source, until one day you are.

Because of this reality, your list of sources and source types to consider must evolve over time too.  Your documented processes should include periodic review of your potential source lists (e.g., annually) to see if they need to be updated with newly acquired enterprise tools, new kinds of employee devices, or emerging technologies being adopted by your custodians (e.g., WhatsApp or Slack).  In order to do this effectively, you will need to consult with your enterprise IT resources, who can provide updates on the organization, and your forensic collection service provider, who can provide updates on global usage trends and evolving industry expectations.

Key Takeaways

There are eight key legal hold takeaways from across this series:

  1. Failures to implement effective litigation holds can carry serious consequences. As we reviewed in Part 1, failure to implement an effective hold can lead to determinations that reasonable steps to preserve were not taken, to adverse inferences and other sanctions, or even to criminal obstruction charges.
  1. The scope extends to all potentially-relevant documents within your control. As we reviewed in Part 2, the scope of the duty of preservation extends to all unique, potentially-relevant documents or ESI – of any type – in your possession, custody, or control (which includes materials held by third-party service providers).
  1. The duty is triggered whenever there is a reasonable anticipation of litigation. As we also reviewed in Part 2, the duty of preservation is triggered whenever there is a reasonable anticipation of litigation (or agency action, etc.), which can happen well before a case is filed.
  1. There are five essential elements that should be included in every hold. As we reviewed in Part 3, an effective legal or litigation hold will always include information regarding: (1) the legal obligations associated with the hold; (2) the substantive scope of what must be preserved; (3) the types of materials that must be preserved; (4) the process that is to be used for preservation and collection; and, (5) how and with whom recipients may communicate about the hold.  Additionally, you may consider including: compliance confirmations; custodian surveys for collection; or frequently asked questions.
  1. Documented, consistent processes are more reliable and more defensible. As we reviewed in Part 4, consistent processes are more defensible than ad hoc ones, and documented processes are more defensible still.  Ideally, both overall written policies and project-by-project process documentation are created and maintained.
  1. There are five core hold activities for which such processes should be developed. As we reviewed in Part 4 and Part 5, hold initiation; hold drafting; recipient identification; compliance monitoring; and, hold release are the key activities for which consistent, documented processes should be created.  In particular, ongoing monitoring of hold compliance is crucial to success.
  1. Tools for these activities include paper, email, electronic forms, and purpose-built tools. As we reviewed in Part 6, your options for hold implementation tools range from paper to purpose-built software, and the right choice will depend heavily on the size of your organization, the size (or number) of your matter(s), and other situation-specific considerations (e.g., compatibility with existing enterprise systems or eDiscovery tools).
  1. Technology is always evolving, and we must evolve with it. As we reviewed above, your lists and plans must be periodically reviewed and updated to reflect new enterprise tools, new employee devices, and new communication technologies in the marketplace.

For Assistance or More Information

Xact Data Discovery (XDD) is a leading international provider of eDiscovery, data management and managed review services for law firms and corporations.  XDD helps clients optimize their eDiscovery matters by orchestrating pristine communication between people, processes, technology and data.  XDD services include forensicseDiscovery processingRelativity hosting and managed review.

XDD offers exceptional customer service with a commitment to responsive, transparent and timely communication to ensure clients remain informed throughout the entire discovery life cycle.  At XDD, communication is everything – because you need to know.  Engage with XDD, we’re ready to listen.

About the Author

Matthew Verga

Director of Education

Matthew Verga is an electronic discovery expert proficient at leveraging his legal experience as an attorney, his technical knowledge as a practitioner, and his skills as a communicator to make complex eDiscovery topics accessible to diverse audiences. A fourteen-year industry veteran, Matthew has worked across every phase of the EDRM and at every level from the project trenches to enterprise program design. He leverages this background to produce engaging educational content to empower practitioners at all levels with knowledge they can use to improve their projects, their careers, and their organizations.

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