Last month marked the 9th anniversary of the Zubulake IV opinion, wherein US District Judge Shira A. Scheindlin clearly defined a party’s duty to preserve ESI “…and put in place a ‘litigation hold’ to ensure the preservation of relevant documents” (emphasis added.) (Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003)). Since that time there have been numerous published opinions sanctioning parties for complete failure or inadequate legal hold. There have even been changes to the FRCP and State Court rules. Yet, legal hold still seems to be a mystery to many, and I am talking about some very intelligent people.
By way of example, here is a recap of a conversation I recently had with a litigation attorney I worked with many years ago. I will call him “Attorney X”. I admire Attorney X. He is a highly skilled litigator and provides excellent service to his clients. He approached me with a request to pick my brain about e-discovery. He explained to me that he wanted to learn more to make sure he had the knowledge to better serve his clients. I, of course, wanted to start with understanding his practices around implementing and instructing his clients on legal holds. The conversation went something like this:
ME: So, do you instruct your clients on legal hold?
X: I send an email.
ME: Do you send it directly to the key players, or does your client distribute it to them?
X: I send it to my client contact.
ME: Do you send a questionnaire about their systems and practices?
ME: Do you know if your clients have automatic deletion policies on systems?
ME: Do your clients report back to you as to how they have implemented the legal hold?
The conversation went on, but I think you get the picture at this point. I am not in any way attempting to pick on Attorney X. I am merely using our conversation to make a point. Attorney X is not alone. As a matter of fact, I believe that there are A LOT (way too many actually) of litigators in the trenches with whom I could have the exact same exchange.
I’d like to give kudos to Attorney X for making this effort to better understand eDiscovery. My questions, though, are: Why is he just now asking these questions? Why are there so many others in the same boat or, worse, not asking questions at all? Why are we still seeing opinions on failure to implement a proper legal hold – the very first phase in an eDiscovery project? In 2012 there were dozens of orders issued that were related to insufficient legal hold practices and failure to preserve ESI. There are two that I am aware of that were issued just last month (mind you, the month of the 9th anniversary of Zubulake IV): (1) Scentsy Inc. v. B.R. Chase LLC, No. 1:11-cv-00249-BLW, 2012 WL 4523112 (D. Idaho Oct. 2, 2012), and (2) Carrillo v. Schneider Logistics, Inc., No. CV 11-8557-CAS (DTBx), 2012 WL 4791614 (C.D. Cal. Oct. 5, 2012).
So…Why is this happening? I hear a lot of grumblings about eDiscovery being “too complicated”. Okay. I understand that it can be complicated. The complexity of any given legal hold (or any other phase of eDiscovery) depends upon the issues at hand, data types, systems, people, places, etc. But it doesn’t have to be a mystery.
Today, there are many excellent resources for learning about all phases of the eDiscovery process. I believe, unfortunately, that more of the legal professionals that seek out these resources are those of us working in the niche field of eDiscovery rather than those that are uncomfortable or lacking knowledge in the field. As a matter of fact, I would be willing to bet that if you are reading this blog you are most likely someone that deals with eDiscovery on a fairly frequent basis. Just to see if I am on target, I have posted a one-question poll below to gather eDiscovery demographics about readers of this blog.
How do we – eDiscovery professionals – take the mystery out of legal hold for others? I have listed a few recommendations here. Please share yours by leaving a comment below.
- You can lead a horse to water… You know the saying. You should have at least one horse in the herd that knows how to drink it. Whether it is in-house counsel, retained counsel, a litigation support specialist, an expert, a knowledgeable paralegal or service provider, make sure there is at least one. You don’t have to be the subject matter expert, you just need one on your team. And you need to listen to them.
- For those of you that influence CLE content, try to add a little bit of eDiscovery discussion into non-eDiscovery conferences. I have found it difficult to get litigators that are not focused on an eDiscovery practice to a conference that is all about eDiscovery. I have a great experience from last year’s Energy Litigation Conference to share with you. The program directors had a panel of in-house legal staff kick-off the day and then a panel of retained counsel close the day on the topic of eDiscovery. Everything else in between was not an eDiscovery focus. I was thrilled with the feedback I got in discussions with audience members at the end of the day – some of whom had never been exposed to eDiscovery as a topic at any type of educational event
- Use scare tactics if you have to. I had a discussion many years ago (ironically, I think it was about 9 years ago) with another industry veteran about just this. I had expressed to him that I preferred not to scare attorneys into dealing with eDiscovery. He replied with a chuckle and said something along the lines of “Why not? It’s a great way to get an attorney’s attention.” Well, over the years I have come around to this way of thinking.
- Take it in baby steps. When you – an eDiscovery professional – have a colleague that needs to learn more about eDiscovery, don’t throw it at them all at once. Start simple and work your way up. I have found lunch and learn events to be successful. Give them food and they will come. It doesn’t hurt to have other incentives as well.
Please share your ideas below. May the ‘Taking the Mystery out of Legal Hold’ force be with you!