Preservation Activities: the blue squares in EDBP represent preservation related e-discovery legal services – Hold Notices, Interviews and Collections. These legal services are rendered for almost all litigated cases to some degree. The activities include:
- Hold Notices
- Notify Custodians
- Notify IT
- Preserve in Place
- Witness Interviews and Client Interviews
- Self Collection
- Bulk Collection by IT
- Cross-Border Issues (when international ESI collection is involved)
General. Ideally a litigant has engaged in pre-suit Litigation Readiness activities and established clear preservation procedures to follow once suit is filed. This avoids often expensive ad hoc procedures and rushed investigations. A litigant’s preservation activities, steps 2, 3 and 4 of the EDBP, should follow policies and procedures that are consistent from case to case and appropriate for their ESI architecture. Yet, at the same time, counsel should allow for custom variations and levels of intensity of preservation efforts that match their proportionality analysis of the case. The failure to create and implement a reasonable litigation readiness plan, including ESI retention policies, and hold policies, can have a detrimental effect on preservation activities, as is shown in Scentsy Inc. v. B.R. Chase LLC, No. 1:11-cv-00249-BLW, 2012 WL 4523112 at *8 (D. Idaho Oct. 2, 2012). Also see: Losey, R., Oral Hold Notice Invalidated as “Completely Inadequate” such that it “Borders on Recklessness” (2012); Sekisui American Corporation v. Hart, 945 F.Supp.2d 494 (S.D.N.Y. 2013).
Litigation Readiness. The first step of Litigation Readiness makes it easier for counsel to implement Hold Notices, Interviews, and ESI Collections that are reasonable for the particular case at hand. The step following the preservation activities, Cooperation, can also greatly assist in the implementation of defensible preservation. Disclosure of preservation at a 26(f) conference is contemplated by the rules. This forces any objections, and if none are made, can protect a party from later attack. The first five steps of the EDBP should always be considered as a whole.
Hold Notices. Almost every case requires preservation related legal services, including a written preservation notice. A litigation hold notice should be sent to custodians likely to have relevant evidence as soon as a duty to preserve is triggered. A custodian is a person or entity whose ESI is under the possession, custody or control of the party to litigation. They are typically an employee of the party, but not necessarily. The law in most (but not all) state and federal jurisdictions creates a duty to preserve as soon as litigation is reasonably anticipated. The first legal service is to determine if the duty has triggered. The next is to determine the scope of the hold activities that should be triggered, bearing in mind proportionality constraints. As a best practice in close questions practitioners always err on the side of early and over-preservation. See New York State Bar Association’s (NYSBA) Best Practices In E-Discovery In New York State and Federal Courts (2011) (Guidelines 1 & 2 on triggering). Also see: The Sedona Conference® Commentary on Legal Holds: The Trigger and the Process, September 2010; The Sedona Conference® Database Principles Addressing the Preservation and Production of Databases and Database Information in Civil Litigation, April 2011. Also see: U.S. District Court for the Northern District of California see their ESI checklist for use during the Rule 26(f) meet and confer process and Guidelines for the Discovery of Electronically Stored Information.
Litigation hold notices should always be promptly sent in writing, regardless of the existence of some court opinions condoning oral notices, and late notices. The notices are sent by email, and best practice requires a response from the custodians notified that confirms their understanding and compliance. Reminder notices should also be sent on a periodic basis that the attorney deems appropriate and necessary under the circumstances. Attorneys should decide which custodians are likely to have relevant information and control who is placed on hold. When new custodians are discovered they should be sent a notice. Attorneys should also control the description in the hold of relevant information to be preserved and all other language. See NYSBA Best Practices In E-Discovery In New York State and Federal Courts (2011) (Guideline 3 on notice language). When the scope of relevant information changes, amended notices should be sent. Again, best practice is to err on the side of overly broad notifications, subject as always to proportionality constraints.
Notify IT. In addition to written notice to all custodians likely to have relevant information, the organization’s designated IT representative should also be provided with written notice. The IT hold notice should instruct IT to stop auto-deletion of email of custodians on hold, and suspend other IT policies governing these employees contrary to the hold notice, including without limitation, the recycling of their computers or wiping of hard drives, even upon their departure from the company. The IT hold notice may also direct IT to make collections of ESI from individual custodians and network drives and other areas based on the attorneys case analysis and proportionality analysis. Preservation of all key player custodians, as determined by legal counsel, should normally include bulk collection of their entire email collection, including personal archives such as PST files, but excluding bulk copies such as emergency enterprise tape backups. Based on attorney analysis, the IT collection directions, including stealth collection, may have to be made before notice to custodians.
Preserve in Place. The written litigation hold notice should advise custodians not to delete or alter relevant email, but otherwise to do nothing. Just preserve the email in place, without collecting, copying or forwarding the ESI. This is the base minimum level of preservation that should be made in every case.
Self Collection by Custodians and Bulk Collection by IT. In the past it used to be an acceptable best practice to ask custodians to locate and collect the ESI on their computers or in their control. Although this may still be acceptable in some courts, and thus still qualifies as a minimum standard, it is no longer a best practice, except in some very small cases where the ESI at issue is likely to have a low probative value. In most cases today, self collection is either eliminated entirely, or is supplemented by prior bulk IT collection and attorney identification and review of all of the ESI collected. The extent of the bulk collection, which ESI areas should be collected, is a legal determination based on case analysis, proportionality analysis, and Rule 26(b)(2)(B) accessibility analysis. See The Sedona Conference® Commentary on Legal Holds: The Trigger and the Process, September 2010. The below chart summarizes the Sedona Commentary on determining the scope of a hold.
Typically both bulk collection followed by self collection will want to be pursued. Bulk collection of all of a custodian’s email is a normal best practice in all but the smallest cases and is typically specified in the initial IT hold notice. Bulk collection of local and network hard drives may also be required based on witness interviews and legal analysis, including proportionality analysis. See NYSBA Best Practices In E-Discovery In New York State and Federal Courts (2011) (Guideline 9 on appropriate collection to preserve metadata with proportionality analysis; and, 10 on scope of search).
Note that after bulk collection by client IT the data should be sent directly to the vendor who will host the data for review. It should not go to the law firm who in turn forwards the ESI to the vendor. This is a common practice, but it unnecessarily places the law firm into the chain of custody and risks data loss or alteration. The typical rationale for the practice of routing through the law firm is to make backup copies. But a better practice is for backup copies to be made by the client IT before sending to the vendor, and not by the law firm. The best practice is for the law firm, or corporate counsel, to maintain control of the bulk collected data, but not for the lawyers to have actual possession of the raw data. Lawyers and law firms should instead only have actual possession of the evidence obtained after review of the bulk collections. For details on this recommended best practice of outsourcing possession to qualified vendors, instead of law firm Litigation Support Departments, and the full rationale therefore, see Best Practices in e-Discovery for Handling Large Stores of Unreviewed Client Data.
Interviews. Interviews of the client, whether or not a witness, concerning ESI should commence at the point of first contact. Interviews of the key custodians should also take place promptly. Custodian interviews are an effective means to ensure full preservation and proper compliance with hold notices, and to find out about the merits of the case. Thereafter interviews of other fact witnesses, both friendly and hostile, should always include a range of ESI related questions, including preservation related questions. Interviews are a key lawyer function to all discovery, including e-discovery.
The initial interviews should begin with the key players, the key custodians of your client that are placed on hold. Then interviews should ultimately be taken of all persons in your client organization placed on hold. The interviews must include questions concerning where they may have stored potentially relevant electronic information, the key documents they recall, and the language used in connection with the controversy, including acronyms and slang that may have been used. These key documents and language questions are important for later search activities. See William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., 256 F.R.D. 134, 136 (S.D.N.Y. 2009).
The custodian interviews are ideally conducted at the custodian’s desk with computer equipment available for them to check and verify storage. They should also be asked about other possible witnesses to verify the adequacy of the scope of the hold and to otherwise better locate evidence. Their knowledge of retention policies should be explored. Finally, their receipt, understanding, and compliance with the governing litigation hold notices should be confirmed.
Interview Outlines. Reference to detailed, exhaustive outlines for interviews are a best practice, so long as you are not wed to the outline. You must have the skill and knowledge to customize and add to the outlines to fit the facts and case issues. Generally EDBP will not be adopting forms like this for a variety of reasons, including primarily the fact that it is rarely, if ever, a best practice in electronic discovery to rely on forms. But, when it comes to interviews, including formal interviews, i.e. depositions, we think that an outline list, which is a type of form, is an exception to the rule. Even the world’s most experienced surgeons, who have performed a particular type of operation hundreds of times, still go into an operating room with a check list. Any lawyer should too before they begin an interview or deposition.
We anticipate outlines will be developed here for interviews with custodians and other fact witnesses, and outlines for interviews with client representatives, such as in-house counsel, even though they are not custodians. Attached is a client interview outline pertaining to litigation holds that was submitted a contributor, Jim Q. We welcome your suggestions to improve on this outline, and your contributions of other outline questionnaires.
There are many different types of witnesses and for that reason various types of question outlines are appropriate. We anticipate having different outlines for witness with varying job functions, whether employed by your client or not, whether storing potentially relevant ESI of not, whether friendly or hostile, and, of course their roles in the case or controversy. There will also be different versions of outlines according to the levels of importance of the witness. For instance, the interview of a key custodian should be much more exhaustive than a minor player, and thus the outline much more lengthy. After interview outlines are further developed, we expect that lawyers will be able to pick and choose which outlines and bullet points are appropriate for the case, the particular types of disputes, witnesses, and clients.
Cross-Border Issues. Most countries outside of the U.S. have privacy protections in place for their citizens that may make it illegal to collect and review their emails, even business email stored on an employer’s computer, without their express permission. It may be a criminal offense in these countries, especially the EU, to collect these emails, and worse to take them out of the country to the U.S.. This is a complex conflict of law issue that is especially difficult when a U.S. court orders the production of ESI stored outside of the U.S.. There are several attorneys who now specialize in this niche within a niche practice area of e-discovery law.
For several good best practice statements on preservation and other areas of e-discovery, see New York State Bar Association’s Best Practices In E-Discovery In New York State and Federal Courts (2011) (14 guidelines); U.S. District Court for the Northern District of California’s Guidelines for the Discovery of Electronically Stored Information (2012).
If you have any suggestions and care to contribute to this project, or any questions on preservation (nothing case specific please), please leave a comment below. Ralph especially needs help on the Cross-Border Issues as this is one of his weak areas. We also would like for you to share your favorite interview outlines pertaining to ESI in general and preservation in particular.