1. Systems, Processes & Challenges Understanding & Representing your Business Client Daniel S. Day

2. Determine At Which Point A Litigation Hold Is Necessary

4. Has a subpoena been issued or a lawsuit filed?

5. Is litigation anticipated?

6. Balancing the risks & weighing the burdens

7. Avoid false alarms where there are only rumors or vague threats of litigation; threats made by a discredited plaintiff, or where the threats lack credibility.When Does the Duty to Preserve Arise? Anticipating Litigation

9. “Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.” Id. at 218.Legal Duties: The Duty to Preserve

10. Determine The Scope Of The Litigation Hold & Issue The Hold

12. The hold must direct employees (“key players”) to preserve all relevant records, paper and electronic

13. Determine the scope

14. Cover all potential document storage: laptops, PDA’s, smartphones, home computers, thumb drives, etc.

15. Create a mechanism for collecting preserved records

18. Is it manageable?

19. If the burden of compliance is placed on individual employees:

20. Communications to preserve documents must be clear, and repeated.

21. Follow up to ensure compliance is required.Systems v. Custodian Approach

22. Get Confirmation Document The Hold

24. Date and rationale for instituting a hold

25. Names and titles of the key decision-makers or custodians

26. Scope of the hold and how the parameters were determined

27. A copy of the hold notice

28. Dates hold notices were sent

29. Who received the hold notices

30. Date and rationale for releasing the holdPaper Trail

32. Following policies & identifying exceptions

33. Overkill

34. Costs & burdens

35. Hold in place or collectionConsiderations Regarding Document Preservation

36. Practical Considerations

39. What resources does the client have, can they manage it in-house or does it need to be outsourced.

40. What is your client’s risk tolerance?Understanding Your Client

42. Who will conduct the litigation hold interviews and how will outside counsel be involved?

43. Make sure information is recorded and shared with outside counsel.

44. Know the costs. Manage the costs. Reduce the costs.How In-house And Outside Counsel Can Work Together

46. Automated communication

47. Record of acknowledgements from records custodians

48. Regular reminders and follow up communications

49. Facilitate collection records in one place

50. Generate reportsAutomate the Litigation Hold?

52. Everything archived in one place

53. Getting a confirmation or acknowledgement from custodians

54. Updating the hold—automatic remindersThe Benefits Of Automation

56. Determine your requirements.

57. Determine your budget.

58. Attend a demonstration to make sure the vendor can perform to set requirements.

59. Is the vendor system a work in progress or is it fully developed?Selecting A Litigation Hold Vendor

61. Forensics teams have access.

62. Document collection tool.

63. Record and document collection efforts.Determine Your Requirements

65. How large is the case? What is the financial exposure?

66. What will it cost to implement the litigation hold? What are the burdens on the system?Balancing Competing Interests Of Risk V. Cost

68. Discuss issues about preserving discoverable information

69. Discuss issues about disclosure or discovery of electronically stored information

70. How will information be retained?

71. In what form will documents be produced?

72. What information is available or unavailable?

73. Cost sharing

74. Discuss scope of the litigation hold/resolve issues & problemsRule 26(f) Conference Federal Rule Of Civil Procedure

77. (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

78. (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

79. (iii) A party need not produce the same electronically stored information in more than one formRule 34(E)Federal Rule of Civil Procedure

81. Update The Litigation Hold

84. Refine the scope of the hold based on updated information and understanding of the case

85. Keep track of terminated employees

86. Gather documents responsive to the litigation hold

87. Release requests that are no longer relevant

88. Use the meet & confer so that you don’t over-preserve and increase burdens & costsHow To Monitor And Maintain And Manage The Litigation Hold

89. Terminating or Releasing The Litigation Hold

91. Documents subject to the hold may be subject to other litigation

92. Communicate and coordinate with IT and other departmentsPractical Issues Regarding Terminating A Litigation Hold

93. Conclusion