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 legal hold. In the fourth Part and the fifth Part, we reviewed the importance of defined hold processes and policies for the five key legal 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.
In most situations, legal 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, legal 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 legal 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.
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.
There are eight key legal hold takeaways from across this series:
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