the dos and don'ts of litigation holds | d4

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Litigation holds are a critical part of the eDiscovery process, and conducting them successfully ensures proper preservation of evidence and guards against spoliation. With ever-increasing volumes of Electronically Stored Information (ESI), litigation holds are becoming more difficult to conduct efficiently and well. There are many examples of litigation holds gone wrong, notably the 2012 case 915 Broadway Associates LLC v. Paul, Hastings, Janofsky & Walker, LLP, during which a litigation hold was issued and blatantly disregarded. Spoliation concerns were raised by the defendant Paul Hastings, and ultimately the complaint was dismissed, and the judge granted defendant’s motion for sanctions against the plaintiff. This presentation discusses four key ways to ensure litigation holds are conducted effectively and defensibly. About D4 D4 is a national provider of electronic discovery, computer forensics, information security and management, and litigation support services to law firms and corporations. D4 was one of the first providers to offer an eDiscovery Managed Services solution, eNtrust, which launched in 2011. D4 has been instrumental in helping customers realize up to a 70 percent cost reduction over previous eDiscovery solutions. Founded in 1997 , D4 has grown to a national presence. With over 160 staff, D4 offers full-service locations in Buffalo, Chicago, Detroit, Grand Rapids, Lincoln, New York City, Omaha, Orlando, Phoenix, Rochester, San Francisco, San Diego and Tampa. D4 fields consultants and project managers from Connecticut, Colorado, Rhode Island, Michigan, and Washington DC. State-of-the-art tier-3 data center operations in Rochester are complemented by electronic discovery and litigation support paper document services throughout the United States. D4 has been recognized by Inc. Magazine as one of the fastest growing private companies in the US and is a three-time INC 500/5000 honoree. In 2010, 2011, 2012 and 2013 D4 was recognized on the “Rochester Top 100” list, honoring the fastest growing companies in Western New York.

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Page 2: The Dos and Don'ts of Litigation Holds | D4

Litigation holds are a critical part of the eDiscovery process, and

conducting them successfully ensures proper preservation of

evidence and guards against spoliation.

Page 3: The Dos and Don'ts of Litigation Holds | D4

www.d4discovery.com

With ever-increasing volumes of Electronically Stored Information

(ESI), litigation holds are becoming more difficult to conduct

efficiently and well.

Page 4: The Dos and Don'ts of Litigation Holds | D4

www.d4discovery.com

There are many examples of litigation holds gone wrong,

notably the 2012 case 915 Broadway Associates LLC v. Paul,

Hastings, Janofsky & Walker, LLP, during which a litigation hold

was issued and blatantly disregarded.

Page 5: The Dos and Don'ts of Litigation Holds | D4

www.d4discovery.com

There are many examples of litigation holds gone wrong,

notably the 2012 case 915 Broadway Associates LLC v. Paul,

Hastings, Janofsky & Walker, LLP, during which a litigation hold

was issued and blatantly disregarded.

Spoliation concerns were raised by the defendant Paul Hastings,

and ultimately the complaint was dismissed, and the judge

granted defendant’s motion for sanctions against the plaintiff.

Page 6: The Dos and Don'ts of Litigation Holds | D4

what went

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SO in the 915 Broadway case

WRONG

Page 7: The Dos and Don'ts of Litigation Holds | D4

WHAT Relevant electronic files were intentionally

deleted by key custodians.

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went WRONG

?

Page 8: The Dos and Don'ts of Litigation Holds | D4

WHAT Automatic-delete functions on email accounts

were not suspended.

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went WRONG

?

Page 9: The Dos and Don'ts of Litigation Holds | D4

WHAT Back-up tapes with potentially relevant

data were destroyed.

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went WRONG

?

Page 10: The Dos and Don'ts of Litigation Holds | D4

WHAT Email servers were replaced, destroying all

deleted emails from two key witnesses.

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went WRONG

?

Page 11: The Dos and Don'ts of Litigation Holds | D4

What Does the Law Say?

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This case was decided by the New

York Supreme Court in February 2012.

Page 12: The Dos and Don'ts of Litigation Holds | D4

www.d4discovery.com

NY law requires a party to

preserve evidence that may

be relevant to pending or

reasonably anticipated

litigation.

What Does the Law Say?

Page 13: The Dos and Don'ts of Litigation Holds | D4

www.d4discovery.com

NY law requires a party to

preserve evidence that may

be relevant to pending or

reasonably anticipated

litigation. Once a litigation hold notice

is issued, routine document

retention and destruction

policies must be suspended

and relevant documents

preserved.

What Does the Law Say?

Page 14: The Dos and Don'ts of Litigation Holds | D4

To ensure an effective litigation hold,

here are four guidelines to follow.

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What Can Be Learned?

Page 15: The Dos and Don'ts of Litigation Holds | D4

Hear Ye, Hear Ye!

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It is critical to send out a litigation hold

notice when a party reasonably

anticipates litigation.

#1

Page 16: The Dos and Don'ts of Litigation Holds | D4

Did You Get the Memo?

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Merely distributing a litigation hold

is not enough. Confirm that each

person received and comprehends

its meaning and instructions.

#2

Page 17: The Dos and Don'ts of Litigation Holds | D4

Engage the IT department in the litigation hold process

early and often. They are a vital component in the

litigation process within most organizations.

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PUT THE IT IN LITIGATION HOLDS

#3

Page 18: The Dos and Don'ts of Litigation Holds | D4

Trust but Verify

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Even if the IT department and

other key players state they

have suspended automated

deletion practices, and have

and are preserving documents

properly, it must be verified.

The case depends on it!

#4

Page 19: The Dos and Don'ts of Litigation Holds | D4

www.d4discovery.com

It is not sufficient to simply send a

litigation hold notice and assume

it will be followed.

Page 20: The Dos and Don'ts of Litigation Holds | D4

To prevent cases from being dismissed,

or spoliation charges being brought,

litigation holds must be actively managed

and overseen.

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Page 21: The Dos and Don'ts of Litigation Holds | D4

For a more detailed discussion of the

915 Broadway v. Paul Hastings case,

please see the article here.

www.d4discovery.com