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Risks & Responsibilities: The Ethics of Legal Holds

The Ethics of Legal Holds

In this updated 2018 version of the Risks & Responsibilities: The Ethics of Legal Holds webinar, one of our most popular annual programs, BIA shares the best practices and guidelines to ensure your legal hold process is clear, comprehensive and correct.

Do you know your legal ethical duty when it comes to properly preserve information in the event of actual or anticipated litigation, regulatory investigation, or other legal events?

In this webinar with our partner, ACEDS, our eDiscovery experts Brian Schrader and Barry Schwartz discuss the ethics of litigation holds and give you the insight and guidance you need to implement and manage legal holds in a defensible manner.

In the Risks & Responsibilities: The Ethics of Legal Holds webinar, you’ll learn about:

  • What the Federal Rules of Civil Procedure and ABA Model Rules have to say about legal holds.
  • Key FRCP 2015 changes and how they impact legal hold responsibilities.
  • Important court rulings addressing legal hold practices, including decisions outlining attorney obligations regarding legal holds and potential ethical pitfalls.
  • The essential steps to ensure a successful legal hold process.
  • Using automated solutions to distribute and manage legal holds.

In the Ethics of Legal Holds webinar, we shared best practices and guidelines to ensure your legal hold process is clear, comprehensive and correct. This webinar is for anyone involved with legal holds, litigation or eDiscovery.

Webinar Speakers

Watch the Webinar

Webinar Q&A Session

We had a wonderful Q&A session at the end of the webinar, and we wanted to share our answers here as many of our online readers may have the same questions.

Can you explain what triggers a legal hold?

A legal hold should be triggered when something happens that could lead to litigation, which can range from the obvious, like being served with a complaint, to the less obvious like product complaints that rise to a level where a reasonable person would anticipate a potential legal action. While there are no Federal Rules specifically stating when a legal hold must be issued, the common law standard going back decades has been that a legal hold obligation is triggered when litigation (or a similar legal event) is “reasonably anticipated.”  See, e.g., Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998).

In the end, it is a question of objective reasonableness: Given a particular set of circumstances, should a reasonable person have anticipated that those circumstances would lead to litigation or other legal event? For example, a single complaint about a rather mundane alleged product defect would usually not rise to the level of a triggering event, while dozens of similar complaints might. On the other hand, a single sexual harassment claim made to an HR representative is likely sufficient to trigger a litigation hold.

Common triggering events include:

  • Product complaints
  • Product malfunctions
  • Harassment complaints
  • Other HHR issues
  • IP infringement
  • Accidents
  • Claim letters
  • Regulatory investigations
  • and more!

Unfortunately, this is one of those legal gray areas without a neat, bright line, so we often counsel our clients that, when in doubt, issue a hold. Issuing a legal or litigation hold is one of the cheapest things you will ever do in discovery, but it’s the single act that can have the most disastrous consequences if not done correctly. The costs of issuing a hold will be minuscule compared with the consequences of having been found to have not met your legal hold obligations.

How do you discuss preserve in place or collect to preserve with executive management?

When speaking with executive management, start by making absolutely certain that they fully understand the critical importance of legal holds, data preservation and data collections. They must understand that the process is a very serious legal obligation that, if not done properly, can spell disaster. Indeed, a company could lose a legal battle – even if entirely innocent – based on failing to fulfill their legal hold and preservation obligations. Once that’s established, it should be easier then to discuss the best methods for meeting those obligations. 

In most instances, we recommend a collect to preserve approach over a preserve in place approach as the safer, more practical option. While preserve in place seems like a more economical approach, the simple reality is that it requires significant systems, software solutions, training and monitoring to be in place well before the need arises.  And even then, it’s nearly impossible to truly control all your employees’ data. 

What’s more, the cost savings of preserve in place are rather elusive in today’s much more commoditized eDiscovery marketplace. Data collections have always been one of the cheapest steps in eDiscovery, and now with remote collection options, collections should cost only a few hundred dollars per custodian. 

In the end, like most discussions with management, it becomes one of return on investment (ROI), with the analysis being one both of costs and potential risks. A preserve in place strategy comes with often significant costs, from training to monitoring to new software systems and more, and always carries the risk of those systems or processes not performing as expected. A collect to preserve strategy can be developed and deployed quickly and economically, and generally ensures that data is truly preserved without any possibility of loss or alteration. And so, when compared, the ROI usually makes the choice clear in terms Management understands. 

Do you have a legal hold form letter that you can share or examples of language to use?

Yes, we have a standard example of a legal hold letter that includes the basic pieces of information any legal hold should contain. In a clear and concise manner, it should state who the subject of the legal hold is, why the legal hold was issued when the hold goes into effect (or really, the time period covered by the hold), what should be preserved, where it should be preserved and how it should be preserved.  

The notice should also provide a contact person for answering any questions and avoid legalese like “heretofore” & “herewith,” as well as any legal analysis of the claims or management’s comments on the claims. You don’t want anything that confuses custodians or leaves them with the impression that the obligation is anything other than absolute.

Also, it’s not uncommon to have different notices for different groups of custodians. Depending on the industry or matter, some people may receive a broad notice, while some may have specific instructions as to what specific data are involved. It’s appropriate to have stratified legal hold notices depending on the audience and the recipients.

And all that’s not legal advice – it’s really just about how to effectively communicate with your custodians.

I work for a city government. Should the attorney’s office train city staff (e.g., different departments) on how to respond when our office issues a legal hold notice?

Absolutely. And that training can be either general to the entire organization or specific to groups as they first receive a legal hold notice. While such training is not a legal requirement per se, courts do expect that steps are taken to ensure that custodians are not only notified but that they understand and acknowledge the notification and their own obligations. Establishing a training program is an excellent way to satisfy that requirement.

We’ve even seen a number of companies start to address this in their onboarding process. (This is also applicable in government employee onboarding as well.) Usually, it’s a very brief training that simply tells employees what a legal hold process is, how the company notifies employees (and others) of a particular legal hold obligation and generally what is expected of an employee who receives a legal hold notice. It need not be complicated and usually takes as little as 10 minutes. But, by making it part of an onboarding process, it helps ensure that every employee understands at least the basics from day one – and prevents them from being shocked and worried the first time they get a legal hold notice. 

And, if there’s ever any dispute as to whether a given employee properly met their obligations, showing that the training process is in place will go an incredibly long way in showing the court that the organization took its obligations very seriously and proactively worked to meet those obligations. 

Just to clarify, if you anticipate litigation and are about to purge documents due to the retention schedule, do you feel it is best to place a legal hold on those documents or would the retention schedule trump the hold?

The retention schedule never trumps a hold obligation. Indeed, several of the cases we’ve included involve companies who were sanctioned based largely on failing to suspend their purge process – both electronic and paper. If you anticipate litigation, you must issue a hold and suspend any impacted systems or processes that might result in data loss, regardless of any retention policies or other issues.

That said, if the information was deleted because of ongoing defensible data retention and purge process, and a legal hold obligation first arises later, after any purge has taken place, then there should be no exposure because there was no reason to retain that data at that time.

Do companies have an obligation to issue a legal hold and then preserve ESI contained on their employees’ personal electronic devices, such as their smartphones, laptops and computers?

Generally speaking, yes, and your legal hold notice should make that clear – it’s about the data, not about where that data sits. 

This is a rapidly evolving area of law that touches on personal privacy and many other issues, and there can be many factors in any given matter that can impact an organization’s responsibilities.  And it’s not even really about just personal devices – the same standards generally apply to cloud storage solutions like Box, mobile apps like Evernote, and other solutions that your employees might use that could contain responsive information but that are not controlled by the organization.

The best place to start is with a formal corporate policy on the use for business purposes of personal devices or other solutions not provided by the organization. Often called “Bring Your Own Device” or BYOD policies, such policies generally outline the organization’s approach to what, if any, corporate data may be accessed or stored on personal devices or other non-corporate resources. Companies take approaches ranging from “absolutely nothing can be stored on your personal devices” to “do what you need to do.” In the end, companies must balance the benefits to their organization from the efficiency of employees being able to use their own devices and access any information they need when and where they need it, with the organization’s obligations in terms of data security, document retention, legal hold obligations and more. It’s not a simple or easy question.

That said, if personal devices are used in an official company capacity, then those devices – or more importantly the data stored on those devices – are subject to legal hold obligations, and a company must take steps to ensure, to the best of its ability, that preservation steps are taken, even though they don’t own or control the device. Even if there is a company policy in place to not use personal devices, the employee still could have done that. And be careful with the defense that such data isn’t in the company’s “possession, custody or control,” as most organizations’ policies make it clear that all company data is owned by the company – regardless of location.

Now, all that doesn’t mean that you automatically preserve data from every personal device whenever a legal hold is issued. There needs to be a reason why you think there is company data on a personal device. And the perfect solution to that is to include questions about personal device usage in a custodian questionnaire, as well as questions about any other applications, software, storage, online solutions, etc., that a custodian might use or access in their work activities.  And even then, just because a personal device is used in a business capacity, it still may not be reason enough to collect the data. For example, if an employee accesses her business email account on her phone, that data is usually simply a duplicate of what is on her computer, and that data would not need to be collected twice.

In the end, this is a complex question with a lot of considerations. Start by issuing a comprehensive custodian questionnaire to help you determine whether and to what extent this issue may exist – and the more you find that it does, the more you should consider bringing in experts to assist.

Could a court impose sanctions if a legal hold document is not properly maintained?

Rarely, but yes, and generally only in extraordinary circumstances where other acts undermine the legal hold process. One prime example is the Plantronics case we cited in the webinar where the company took significant steps to not only issue and maintain the legal hold at issue, but also established special training sessions for custodians as well. But, because of bad acts by their most senior sales executive and the court’s opinion that the company didn’t do enough to address those bad acts, the company was still sanctioned millions of dollars (they went on to win the case, but still had to pay the sanctions). 

So, while legal hold discussions often center on the notice document itself, organizations must not forget that the document only establishes the notice to custodians. It’s the first step in a process that must be dynamic to each case. In most cases, a standardized process is more than sufficient, but when extraordinary events occur like the bad actor in the Plantronics case, then extraordinary steps are generally required to address, contain and correct those issues. 

Does this rule apply in civil courts, common law courts and even in criminal law courts?

Generally speaking, the obligation to preserve and protect evidence exists in any legal context, but the obligations and discussions in our webinar and related materials focus more on civil and common law courts.

Do firms usually have legal hold software to issue and manage holds for corporate clients? Or is that something corporate clients usually maintain?

Historically it’s been handled by the corporation; however, that is changing, as attorneys and law firms start to take a more proactive role in the legal hold process. 

As this webinar makes clear, courts are now holding attorneys directly responsible for their client’s compliance with legal hold obligations, and clients are starting to sue attorneys for malpractice when their attorneys fail to do so. In response, we’ve had a number of our law firm clients license our TotalDiscovery solution directly themselves so that they can quickly and easily issue, monitor and maintain legal holds for clients without established solutions. 

What do you recommend regarding frequency of reminders?

We typically recommend every 90 days. Depending on the matter at hand, you may only need to remind the custodians semi-annually or annually. But there is no harm in doing it too frequently. Plus, if custodians are involved in multiple matters, all of them can be listed in the email, with links to view more information on them.

Webinar Transcript

Mary: Hello, and welcome to the ACEDS webinar channel. My name is Mary Mack, and I am the executive director of ACEDS, the Association of Certified eDiscovery Specialists. And welcome to our first webinar this week for our legal tech jumpstart. We have a wonderful webinar sponsored by BIA. And BIA is also known as at BIA Protect. We’ve got some tweeting going on, some live-tweeting of this session. And the session is going to be on the perennial subject of risks and responsibilities, the ethics of legal hold. And this is a webinar that our presenters have kept evergreen because, as you know, legal holds is an area that the judges like to write about. And so they’ve got some really interesting new case law for us on as we get into the session. So if we at what the accreditation of this program is, we’ve got an hour of ethics credits, State Bar of Texas, and some pending approval. And all attendees will receive a certificate of attendance. Certainly, it’s a CEDS credit, and if you’ve got other CLE reporting requirements, it may be helpful to you, especially if you’re self-certifying your CLE. 

Our speakers today – they’ve got decades of experience, maybe even almost a half a century of experience between the two of them. We’ve got Brian Schrader. Brian is an attorney. He’s got over 20 years in information management technology. He is the founder of our wonderful affiliate BIA, and he was involved with the discovery bot, which was one of the first lightweight collection – or light touch I should say – collection tools, something easy to use and collect. And also total discovery, which was one of the first SAS solutions as well. And Brian has been addressing eDiscovery issues for quite a long time here. With him, another attorney – an attorney summons I should say. Barry Schwartz, Esq., he’s the VP of advisory services with BIA, and he has 35 years of legal and business consulting in the areas of litigation, discovery, information management, regulatory compliance, and the emerging discipline for lawyers, IT security. So Brian’s curriculum vitae here, and Barry’s as well. And with that, I will hand it over to Brian. And please type your questions into the Q&A panel, and Mark MacDonald will be handling questions towards the end. Go ahead, Brian. 

Brian: Thank you very much. And thank you, everybody, for attending today. I hope that you find this presentation to be valuable. This is what we’re going to be talking about today. We’re going to start out with just a little bit of history of the legal holds process and why it’s really in the spotlight today. Barry will talk about the legal holds and its mentioning in the Federal Rules of Civil Procedure. We’ll also take a look at the ABA model rules. We’re then going to go through some case law and sanctions. And at the end, we’re going to give you practical guidelines on how to actually issue an effective legal hold, and to avoid the pitfalls that others have found themselves in. We’re going to go through an awful lot of information if you can see the number of slides here. Obviously, we’ve got a lot of slides to go through. It is a packed presentation with a lot of case law. But some of the cases we’re going to talk about, lots of them, we’ll go over a little more quickly, but don’t worry we’re going to not only make the presentation available to everybody, but we also have a handout that goes along with it that is kind of like the crib notes. It gives you kind of a much broader explanation than the presentation slides do themselves. So for those of you who want to take notes feel free to do so. But for those of you who want to just listen and kind of absorb the conversation, rest assured you’ll get all the notes that you need once the presentation is completed. 

So that being said, let’s talk about some breaking news. This case just came down within the last couple of weeks. And I give kudos to Barry for being the first to see this case. When we first started this series, it grew out of a seminar that Barry and I would give on legal holds generally. And what we started to see several years ago were some courts starting to mention the attorney’s responsibility when it came to legal holds, and starting to talk in terms of ethics. And when you start seeing those kinds of things, you start wondering how far we are from it being turned into a real malpractice liability or potential malpractice liability. And that’s what really started this series. And lo and behold – even though we’ve seen some cases that we’ll talk about where not only parties have been sanctioned for legal holds, but their counsel has as well. This is the first case that really we’ve seen reported at least where a client has taken their counsel to court for specifically failing to properly advise them with respect to how to issue and maintain a legal hold process. So it kind of comes full circle, and it took a number of years to really kind of get here and to see the big M word out there when it comes to legal hold, but it’s there. And it makes this presentation and the information all the more important. The good news is, at the end of this, hopefully, you’ll see that it’s not that hard to make sure that this responsibility is successfully fulfilled. It just takes a little bit of due diligence, a little bit of kind of making sure you check the boxes off and do it correctly. And rest assured if you follow what we’re saying here, you’ll never face this kind of situation yourself. 

So that being said, we’ll get into a little bit of history really quickly, just to make sure everybody understands what we’re talking about. We’re talking about the process by which organizations notify their custodians that there’s a need to preserve information – electronic paper or other forms – in anticipation of litigation. And we’ll talk more about those specific terms and details later. This is what we’re talking about today. It’s the actual notification process. So why are legal holds in such a focus? Why has this really kind of become such a hot topic recently? And I like to blame Judge Scheindlin in a good way. Back in 2003, in the Zubulake cases, specifically, Zubulake talked about the need to issue a legal hold and the importance and what that meant when it came to electronic data. And it was really kind of the first case that we need to talk about this in terms of computerized systems and automated processes and paint backups, and brought this concept of legal hold for this first time in such detail into the world of eDiscovery and really kind of launched that. Fast forward seven years later, the second decision that really kind of put a cap on this was the Pension Committee case. And the pension committee case was later rejected by the Second Circuit, but it caused a huge splash because it said in no uncertain terms that it was absolutely good that parties would be liable for not issuing a written legal hold notice. Underline the word written. Someone was putting a line in the sand and said, look, if you don’t issue a legal hold, a written legal hold notice to your custodians, it’s de facto inappropriate and sanctionable. Even though the Second Circuit came along later and said well it’s not really true, we’re gonna you know we’re not going to hold that as the standard, we’re going to say that what about the one person company, what about the non-employee company, all these other kinds of situations that were put out there as a way to say that you didn’t necessarily have to have it in writing. But the court did say that it didn’t say it shouldn’t be in writing or it didn’t have to be in writing, what it said is there may be circumstances where not having it in writing would be appropriate and that if you didn’t put it in writing you could defend yourself. And my response to that is, wouldn’t you rather not have to defend yourself and just put it in writing? We’ll talk about that later. But really those two cases heightened the whole sensitivity of the industry to the issue of legal holds starting first with what legal holds meant in terms of eDiscovery and then talking about what happens from a liability perspective when a legal hold is not issued and issued in writing. 

So as I mentioned, we first started seeing some of these cases that started to target counsel’s responsibility when it came to legal holds. The first one being back in 2010 – the United States versus Suarez, but really the NVE Inc versus Palmeroni was the first civil litigation. In there, the plaintiff was sanctioned with an adverse interest and attorney’s fees for not instituting a required litigation hold. And really there it was because counsel had left the process to a non-lawyer CFO inside the company, his client didn’t have a general counsels office, so the attorney went to the CFO and said you need to issue a legal hold, didn’t really give him a whole lot of guidance and didn’t follow up on the process and didn’t really make sure that it was being done properly. And so litigation hold that was issued was found to be faulty, and sanctions ensued as a result. The United States versus Suarez is very interesting because the court criticized the US attorney’s office for failing to issue a litigation hold to the FBI, somebody who you wouldn’t think would need it. The FBI is kind of supposed to be keeping evidence generally speaking. And so that was a remarkable case to show that this was an expectation that existed pretty much in every case no matter what. And then the next one was Harleysville versus Holding Funeral Company. There was information placed on a secure cloud location, accessed by defense counsel that viewed and shared it with other defense counsel in the matter. The court there actually ended up sanctioning the attorney because they had an ethical duty to return the information that was sent out there as well. So these are some of the cases that came up and started targeting the attorneys and the attorney’s responsibilities and what the attorneys were doing and said when it comes to this stuff, the attorneys really had an ethical obligation. The courts were quoting model rules of ethics and state ethic opinions, and as Barry will kind of cover here in a little bit, the basis for finding these kinds of liabilities. 

For those of you that need a code, here are the first CLE accreditation codes numbers 517. So another area of where this came into play was the FDIC versus Malik case. There the bank’s former lawyers that had worked on some transactional cases for the bank because there was a substantial dispute because they had worked on some financial transactions that had a certain amount of expectation with respect to how long documents would be retained. The court noted that the firm had an affirmative duty to preserve not only the case stuff but emails as well based on ethical professional liability. So here’s where you’re seeing not just in the litigation context where you’re representing a client, but in a transactional context where you have a responsibility to maintain information. If you didn’t maintain that information following the transaction that it ends up giving it to a litigation, you may find yourself with an ethical liability there as well. The Procaps case versus Panethon is just another example of where the defendant and counsel were sanctioned. And this was the one that I mentioned in the beginning where the court actually went as far as encouraging the firm to explore which attorneys had been involved in the failure, and made sure that they themselves on an individual basis pay at least some or all of the sanction. And so these are the cases that are leading up to what we’d seen today. They were all in terms of sanctions, not necessarily in terms of practice. But kind of the two go hand in hand. You can see where that line of cases eventually ended up with or ended up. 

The Brown versus Tellermate – in this particular case, the council had just done issued a general directive to their client to preserve documents. In that case, the court really found the council should have taken time to spoke – excuse me – to speak with key players and really dig into this case and figure out where data was and how it should be held and make sure their client is fulfilling their obligations. In this particular case, the Salesforce database wasn’t maintained and wasn’t preserved. And the attorney made the argument in that well that was a system outside the control of the organization. But had the attorney gone and looked at the actual documents and contracts in Salesforce, the attorney would have seen that there’s a clause in the contract itself that said all the data that exists in Salesforce for a particular client is that clients sole property and they have complete access rights to it. And so the contract itself kind of came up and bit the company and counsel unexpectedly because they hadn’t looked at it, they hadn’t really died into that relationship, and they just made assumptions and representations that weren’t based on fact. And so that’s important when you start looking at these solutions, a lot of people just made assumptions, and you definitely can’t make assumptions. You have to dig in, figure out really what kind of systems they are. And if you don’t know whether or not your client has the ability to maintain those systems from a legal hold perspective, don’t make representations that they don’t unless you’re able to prove that. Because like in Tellermate you might come back and find out that well actually they did have that – not only did they have it practically but they had it contractually as well. The Mirmina case, the counsel, did what they should, and so there was no kind of motion to compel or sanctions issued there. There was based on speculation. I’m going to kind of skip over a couple of these because we’ll run out of time if I go through every case. 

So that being said, let me turn over part two here to Barry, who will go through both the FRCP as well as the model rules. Barry? 

Barry: Thank you, Brian, and hello, everyone. The first rule we’ll discuss deal with the ethics in the certification process with respect to making certain your discovery effort has been complete, and that’s rule 26. Specifically, in rule 26G the attorney – the signature of the attorney or the party on the document constitutes that the attorney is certifying the best of their knowledge the information and belief that they’re presenting to the court and the opposing side is true and correct and that the attorney is comfortable and knows that that information is what it’s supposed to be. And that’s a long way to say that when you present documents in discovery to the opposing side, you better be certain that what it is you’re presenting is what you say it is – it’s a correct representation of the documents that are required by the rules of the court in the various agreements between the parties regarding request for production of documents. One of the other aspects of rule 26G that went into place a year and a half or so ago is that it restores the personality factors to the original place in defining the scope of discovery. That means that parties need to consider all the factors with respect to discovery requests, responses, and objections. And there have been various court decisions now sedating that attorneys can not, when they’re responding to discovery requests, make wholesale objections and so forth, that their objects and comments need to be to the point and on point. 

The safe harbor provision of 37E used to be that if there was a technical failure of your equipment that no harm, no foul. Now what is stating is that upon – that if a party fails to produce documents say from custodian A, but those documents are available from custodians B or C or D or E or somewhere else in their system that no harm no foul provided that those documents are correctly produced and can be then identified as something that says custodian A had in their possession. The primary intent of the safe harbor provision now is to not intentionally prejudice the other party from not being able to produce information. So one of the statements within the rule is upon finding prejudice from another party from the loss of the information, the court may order measures that are no greater than necessary to cure the prejudice, meaning that sanctions are harder to be imposed upon a party if that information is available elsewhere. 

Brian: I was just going to say, it’s a bit of a get out of jail free card to an extent. And it’s important to note with respect to litigation holds that it’s kind of saying if for some reason you didn’t issue a litigation hold, or a litigation hold wasn’t done properly, you may not face sanctions if the data is still there or it can be recovered from another source. So it’s – I don’t want to say it has reduced the standard – it’s kind of made it more practical than it was in the past which means that obviously if that bar is lowered, the kind of malpractice stuff that goes along with it would be lowered as well. But I think Barry, you’d agree that the last thing you want to do is rely on that kind of safe harbor. That’s a get out of jail free if you find yourself in trouble this is a way out, but it’s not something to rely on. And that was just what I wanted to – that point I wanted to kind of zone in on. 

Barry: Yeah, I agree 100% Brian. One of the points here is rule 26F3C, sorry for the long number, is probably the first reference within the federal rules that address the concept of preservation. It doesn’t specifically state litigation holds should be issued, but it certainly encourages the parties to enter into discovery plans that address the concept of issuing litigation holds. 

And let’s move onto the ABA Model Rules. And rule 1.1 is that of competence. And note six, which we mention here, states very clearly that a lawyer should stay apprised of technological changes included the benefits and risks associated with relevant technology. And so one a case by case basis, this duty of confidence may require a higher level of technical knowledge and ability. And depending on the eDiscovery issues in a given matter and the nature of the ESI involved, there may be some requirements that the attorney who’s representing their client needs to go elsewhere or seek additional support. So an attorney who determines they’re lacking the required competence for a specific eDiscovery issue. And case in point might be clients are requesting, or the parties requesting, technology assisted review and the attorney doesn’t have competence in their area, is inexperienced in that area. So then the attorney will need to find other people within the firm or retain an expert outside the firm who can assist with the particular skill set that the attorney is lacking. And so there are three steps, there are three options that the attorney can follow. One is to acquire the sufficient learning and become educated on that, or as I just said, associate with, or consult with a technical resource. Or lastly, and not always the best option but certainly an option, is to decline the representation for that particular matter. 

And model 3.4 addresses some issues that we sort of touched upon with rule 37 and 26 earlier, and that is that an attorney needs to be fair with the opposing party and with counsel. So as to not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal. And one might say with rule 34, we had this instance just in the last week or so with one of our clients, of alleged dumping of information in a document production that obfuscated the relevant information for our client to view. And that is certainly, in our opinion, a breach of model 3.4 here. And again, the theme of the day is if you fail to issue a legal hold for your client or fail to have your client issue a legal hold, you may be seen as obstructing some of the party’s access to the evidence. And the breaking news case that Brian touched on, Industrial Quick Search versus Miller, is certainly key and right on point to this issue. 

And remember that as an attorney, your client isn’t an individual necessarily, but the organization. So you’re representing the corporation, you’re representing the non-profit, you’re representing the governmental agency. And if you reach an obstruction within the organization, it’s upon you to discuss with other people more senior in the organization in your contact to make certain that it’s the organization that is protected, not just the individual. So again, with the theme of a legal hold, if your GC for your client says they don’t want to or don’t need to issue a litigation hold, the rule implies that you can’t stop there, you need to go to a more senior person, or even to the board. 

And model rule 5.1 means that essentially that the people under your supervision need to be as informed and performing correctly as well. Just that they are subordinate to you, that they need to comply with the same rules that you need to comply with. And they need to have the appropriate training for the tasks and issues you’ve asked them to research or report upon to you.

The concept of 5.2 regarding subordinate lawyers, an important concept here is, and we quote from the San Diego Bar Ethics Opinion, that the duty to act competently requires informed review, not just blatant reliance. That means that if a junior attorney is instructed to do something that they know is not correct, they cannot rely upon the instructions from their more senior associate or partner and need to respond and act accordingly. 

For model 5.3 or rule 5.3, a lawyer needs to properly supervise the external resources that they’re utilizing. So a lawyer having direct supervisory authority over the non-lawyer should make reasonable efforts to ensure that that person’s contact is compatible with that attorney’s professional obligations, and that’s really critical. And as Brian touched on in the Palmeroni case, the attorney couldn’t just rely upon the CFO in that instance to issue a litigation hold, and needed to confirm that indeed the instructions and the requests that the attorney gave to the client were indeed followed. And now I’ll turn this back over to Brian, and we’ll delve into the more minute points of case law. 

Brian: Thank you, Barry. And so you know I hope everybody kind of understands now that – how, I should say – the legal liability for attorneys can attach here. We talked about the cases that started showing that attorneys are being held responsible for issuing a legal hold or making sure their client issues a legal hold. And Barry went through some of the ethical rules as well as the ABA model rules and the FRCP that touch upon this and that the courts have looked at in some of those opinions to kind of establish the ethical responsibilities that are there. I think the number one is the whole competency thing – that’s cited the most by courts – is the model rules on competency. But the FRCP has started to go and talk more about issuing legal holds as well. And much more than it used to, which is still not a whole lot, but something is better than nothing. And so now that we’ve established where the liability comes from for attorneys when it comes to legal holds, we wanted to now send the rest of the time talking about how to actually issue a legal hold, how to avoid those pitfalls, how to learn from other people’s mistakes. 

And the first part of that again, we’re going to go back to the case law and talk about some of the more prominent cases. There are a ton of cases on legal hold out there, and in fact, if you look at most cases on eDiscovery sanctions, they talk about the missing data and lost data and backup tapes, and this, that, and the other thing. And the vast majority of them at the heart, especially when you’re talking about the ones that resulted in sanctions, really does come down to – was data properly identified and preserved? It’s those first steps in a case that really kind of bring out the – that are really where most of the sanctions result is from those first few steps. If somebody doesn’t get sanctioned because they didn’t use the right TAR mechanism, or they didn’t use the right review platform, or maybe they didn’t deduplicate data correctly, that kind of stuff. Those issues arise, but they don’t result in sanctions in most cases, or in the vast majority of cases. And so really this is where if you’re concerned about making sure your clients are protected when it comes to eDiscovery, it’s the legal hold and preservation process that is the most important. So we’re going to walk through the case law, talk to you a little bit about where the case with the law has really developed in terms of legal holds – it’s pretty much all case law based – and unless we’re done going through some of the scary results of those cases we’ll go through step by step on how to issue legal holds and finish up there. 

So the being said, one of my favorite cases when it comes to legal hold is the Apple versus Samsung case. And it’s – I have it titled here – what’s good for the goose and as you all know the rest of that saying is good for the gander because it was probably the most highest-profile case that really brought out this idea of this isn’t just a plaintiff thing, it’s not just a defendant thing. If, and especially if you’re going to start holding your opposing counsel or your opposing party to these kinds of standards, better make sure you’re doing it yourself and doing it very well. And so in the Apple case, towards the end of discovery before trial, Apple went to the court with the motion to compel or impose sanctions against Samsung because there was ample evidence that data hadn’t been retained. How were they able to prove that? They were able to go and say look you know for these executives, we have no email from these periods of time. And through the metrics and through what they had gotten produces in discovery without going into painful detail, they were able to show the court that looks there had to be data not produced. And it came out that Samsung hadn’t issued a legal hold on time and in a timely manner. And that even after they did, they didn’t follow up on the employees, and they didn’t suspend their automatic deletion policies. And their automatic deletion policies back in this time, I believe it was either in a week or two, an email would be deleted from an individual’s inboxes unless they took action to preserve it. And so you can imagine that resulted in data being lost very very quickly. And so this whole issue came up, and they weren’t able to recover any of that information, so the court said that they would issue an adverse inference against Samsung and tell the jury that they could – they would tell the jury that Samsung had destroyed data because they had failed to maintain it, and the jury could assume that anything that was destroyed would have been bad for Samsung. And so, of course, that’s a horrible sanction to get, it’s a horrible adverse interest to be facing with the jury. Basically, you’re telling a jury at that point that your client destroyed evidence. Whether those are the right words – those obviously aren’t the exact words – but that’s what the jury hears. And so Samsung, of course, appealed, and they appealed on two grounds. First, they said look, we don’t think this is correct, and we think we did everything we should have done, but even if we didn’t, Apple wasn’t any better. They were able to show gaps and emails and missing chunks of time from anything from Steve Jobs. And they showed that Apple had only issued a legal hold after they had come out with the complaint against Samsung. And so what the court then came down and said well I’ll tell you what, they both – neither one of you did a good job preserving data and issuing legal hold, so we’re going to just issue a legal hold against both of you. And of course, mutually assured destruction. Then the instructions were never given; they both kind of waived and agreed to waive their rights to do it. 

But it’s a great case, and if you read no other cases on legal hold, these two cases, the magistrate judge in the district court review of that case because they go through a ton of detail. And it’s a really really great case to give you an understanding of what courts expect. Everything from when a legal hold should be issued – things we’ll be talking about here in a little bit – to what the expectations are to stopping data destruction policies. There’s a lot of topics covered here. And in both of them together, taken together, really do come out with a great narrative of the whole legal hold issue. And one of the most interesting things you’ll find is that the court when it came to figuring out when the parties here should have issued a legal hold, the court says look there’s a lot of back and forth he said she said about when claims were made and who knew what when. But about six months or so before the litigation was filed, Apple brought up an army of attorneys to Seoul, Korea, and met with Samsung to tell them about all these complaints they had on patent and really kind of negotiate the whole thing and try to come to a settlement. Of course, that didn’t happen, and a case was filed. And the court said at the very latest, as of the date of that meeting, both parties should have instigated litigation holds, and neither party did until four months later, until much later. So it’s one of the best things that come out of that case. I think it’s one of the greatest cases that modern cases you’ll see on it that really kind of goes through a lot of the details. It’s definitely worth the read. 

Here’s the second CLE accreditation code, 325. We talked about this a little bit in the Samsung case that talks about look this is not just for defendants. The district court here had spoliation sanctions against the plaintiffs in which this case happened to be the US government for failing to issue a legal hold. So it’s important to understand that this isn’t just a cause for defendants, everybody needs to be concerned about it as well. Bad faith isn’t necessarily required either, although it’s a little bit changed by the new federal rules. Not that it’s not required, it’s just that the courts, the severity of sanctions that will get put in place have a lot to do with bad faith. And so carelessness can still cause you problems, even though the Federal Rules of Civil Procedure now talk in terms of bad faith, it’s not a required element necessarily in a legal hold kind of either a malpractice case or a sanctions case. But in this case, the defendant venture here didn’t take steps to preserve certain information and suspend both paper and electronic data deletion policy into lost data. And the court found look this lesson – was no intention here, they just didn’t suspend the process, and it results in important information being lost. And yet sanctions were issued in this case as well. 

One of the things you gotta remember, and we’ll talk a little bit about this, triggering events. But one of the things that you need to do with clients, and especially if it’s a new client not familiar with it, is get them to understand their organization and look for where triggering events might occur. And we’ll talk a little bit about this later. In this particular case, there were some EEOC notifications made to JP Morgan Chase their HR department was dealing with. And they didn’t issue a legal hold when they first got the notices and data ended up getting destroyed, and so sanctions were issued as well. And so here the lesson came up for JP Morgan was we better be looking out at every single employee complaint that comes in to decide whether a legal hold needs to be issued. It hadn’t – if it didn’t rise to a certain level past just receiving a notice, they hadn’t issued legal holds. And now this obviously says that they should have been examining those notices and taking proper action, even though the case hadn’t yet been filed. 

A couple of cases here to talk about in terms of issuing legal holds quickly. And the important part of this is just – we’ll talk a little bit about this in a minute when we talk about the practical guidelines – but don’t wait. Litigation holds in this first one took four months to send. It’s better to get your legal holds out there early, to get them out as soon as you possibly can. They don’t have to be perfect. They can always be corrected. They can always be supplemented. They can always be withdrawn if necessary. We’ll talk a little bit about that as well in the practical guidelines. But just get it out the door. It’s not that hard. It should take maybe a couple of hours with a good process to issue a legal hold. It’s something to do. One of the first questions that should always come up at the beginning of every single litigation that you’re involved in is has a legal hold been issued, and if not, that’s step number one — just more cases on issuing legal holds quickly. 

Custodian identification is another big issue. How do you identify custodians? So you gotta be comprehensive. You can’t just assume that you know who the people are in the organization, even if it’s a client you’ve been working with for ten years, and you feel that you know them inside and out. You may not – there’s no way unless you’re involved in that company every day that you’re going to know every corner of the business. You’re not going to know about independent consultants who may need to be put under legal hold even though they’re not employees. Talk about that a little bit. There are ways to make sure you’re comprehensive in identifying custodians, and how to go about that. We’ll talk a little bit about that in the practical guidelines. But this is an important topic, and courts are really focused in on this. You can’t just kind of blanket certain custodians. There has to be a method to the madness. There has to be some proactive action. You have to go out there and actually talk to people and find out hey, do I have the right people on legal hold? Are there other people who should be on legal hold? People who are mentioned in the complaint are a good place to start, and you talk to them. And then you just keep widening the scope during interviews. 

We have a couple of recent decisions on the FRCP. I’m not going to go through these. These are really talking about how responsibilities and other kinds of changes to the FRCPs way the courts determine what sanctions are appropriate, and really talk in terms of what we’ve talked about already, the culpability and knowledge and practical effects of it all as well. And the reason I kind of skipped over that is I wanted to spend the last 20 minutes of the call talking about to avoid all that. How do we get to issue legal holds that avoid all these problems, and we never end up in front of a judge? And so one of the things I’ll say before we actually talk about the issue of the legal hold is that what we always tell our clients is if you want to get ahead of this stuff, if you want to be able to issue legal holds on time, you have to prepare. Yes okay. With legal hold tools today, including the Total Discovery one, which is what we use, you can issue legal holds fairly quickly, even if you don’t have an account. You can within a day, within an hour, sign up for an account, issue a legal hold, get it out there to everybody. It’s not as hard to do that process as it used to be. 

But still. If you want to be ahead of the process if you want to really make sure you’re not going to violate any other kind of standards we’re going to talk about. Whether it’s identifying the right custodians, getting the legal hold issue out there, identifying the systems that are in place, identifying the trigger events – in order to really have a grasp on this, you have to have a legal event team. It doesn’t have to be a team that meets every week and ruins your day because you have a meeting every day. It’s just a group that gets together at the very beginning to create a loose framework as to how this is going to operate inside of a given organization and then meets once, twice, quarterly, depending on how active your litigation profile is inside the company just to make sure that the plans they put in place to not only identify potential litigation triggers and urgency legal hold trigger, but also make sure the process goes correctly. That’s absolutely the most important thing. And the steps to create that team are listed here. I won’t just read off the bullet points to you, but it’s pretty straight forward. It’s creating your team, educating the team, figuring out the solutions you’re going to use before you’re going to use them, figuring out who is going to do what when that triggering event comes, and also having a basic understanding of the potentially relevant ESI so you can make sure when legal holds are issued, data release policies for example, are suspended where appropriate. 

And so step number one to a good legal hold process is to have a good team and a good office, so to speak in place. What triggers a legal hold? This is the first question, really. Before how do I get to issue a legal hold, is when do I need to issue a legal hold? And unfortunately, the answer is that it depends. There’s no bright-line rule to this. The official rule is when litigation is quote reasonably anticipated. And there’s no specific federal rule that specifically says when a litigation hold should be issued that goes beyond that. But some of the triggering events are things like product complaints and product malfunctions. Not saying that if you get one complaint from a customer, but most companies have an understanding of what constitutes normal product complaints or malfunctions versus what constitutes an exceptional event where litigation could attach. Harassment complaints and other HR issues are a big source. You know when somebody comes into you and talks about sexual harassment claims against a fellow employee, it’s a pretty clear trigger that a legal hold should be taken, or legal hold action should be taken there. IP infringement, somebody makes an IP infringement claim like in the Samsung and Apple case, as soon as you know of that claim. We, to give you an example, we several years ago were sued by a patent troll for some of the Total Discovery software when it was still part of BIA, claiming that we were violating a patent. And the patent had nothing to do with manipulating PDFs. It had absolutely no bearing on what we did in Total Discovery. And we knew from the very beginning that there couldn’t possibly be anything there because the software didn’t do anything along the patent lines with PDFs. They were clearly just – they sued like 58 discovery companies on the same day. But even though we knew it was a complete crap case, you know if you could tell I felt a little strongly about it, we still issued a legal hold to all the executives, the developers, the people who were involved in the case, the salespeople. Because we’re not going to get caught in a technicality. Especially back then, it was a little tougher standard. And so accidents and claim letters, regulatory investigations – these are all triggering events. If you understand your clients, if you’re inside of a corporation, you can probably identify the areas that are most likely going to be areas to look for triggering events. And so anytime – so you need to be able to train those people, need to be able to establish those expectations with respect to bringing it that, raising that notice to the legal department or outside counsel as the case may be to make sure legal holds are issued when triggered. 

So all that being said, the steps to a successful legal hold finally. In the last 15 minutes, we’ll get to tell you how to avoid all this stuff. The very first step you have to do in any legal hold is identify the custodians and compose a legal hold. Not necessarily in that order, those both kind of happen at the same time generally speaking, but the first step is to identify potential custodians. And what we tell people is this doesn’t have to be perfect. Please, please, please stop trying to make it perfect because you’re wasting valuable time. Cast a wide net, but not too wide of a net. In other words, it’s best to be a little over-inclusive with your legal hold notice, and your legal hold to employees. Like I said when we did ours on this IP case, we even included some salespeople, although we knew they probably didn’t have any information particularly relevant to that case, especially because we thought the case was not even going anywhere. And in fact, it was dismissed within two or three weeks. But we still included those individuals because they might have been or might have had some information had the claims actually gone forward — interview key personnel. Interview people, who are named in the complaint, talk to managers, and ask them the simple question – who do you think has any information, knowledge, documents that might have any bearing on this case whatsoever? Do not blanket the whole organization, though. And the reason we say that is because it’s kind of like the boy who cried wolf. If the entire organization every time you get sued gets a legal hold notice, and especially if the legal hold notice talks in terms of things that a particular employee has absolutely no involvement in, it becomes that boy who cried wolf syndrome, and people will start ignoring it. So you want people to be very involved in looking at – oh sorry – you want people who have some connection to that particular case and not just the company as a whole.

One thing to not forget, the FRCP 24A1 says possession custody control; in other words, you’re responsible for any documents in your possession, custody, or control. So in the case, we noticed here, the court held that the defendant had to put their data and issue a litigation hold on its independent title agents, its independent contractors. Because those independent contractors held data, but that data that information was the property of the defendant. And contractually, it was clear, similar to the Tellermate case. The contract made clear who owned the data, and even though it wasn’t in their possession, it was in their control. And so they were responsible for that, they should have issued legal holds to those third parties but didn’t. And so identify that. And we’ll also talk in terms of exiting custodians as well and how important those are. 

The next step is composing a legal hold document. We’ll talk a little about that. But we have talked a little bit about it. Composing the legal hold document is obviously an important step. Again, it doesn’t have to be perfect, and it can always be updated, and it can always be supplemented. And like we said, it should always be in writing. We’re going to talk a little about that in a second. The next three steps are pretty clear. Number one, once you’ve got the custodians identified and you’ve done it – the legal hold in writing, you’ve got to distribute the legal hold in a reliable, verifiable, and defensible manner. And so today probably about half the companies from what we’ve seen in polls in our own experience, about half the companies have a software system to issue legal holds. And a lot of other companies are either doing it manually or using spreadsheets and emails are pretty much the common practice there. It doesn’t really matter how you do it as long as you’re confident that you can defend that process. We see a lot of smaller companies use spreadsheets and emails because legal holds used to be an expensive process. Now they’re pretty cheap. But in larger companies that have more ongoing litigation generally tend to use automated processes because a manual process can literally take a full time employee to manage, whereas if an automated process, it pretty much does it all automatically with ten minutes of maintenance if to maintain a legal hold once it’s distributed. There’s a lot of case law out there that talks about in terms of you can’t just send out a legal hold and be done with it. You have to make sure that you’re sending reminders to custodians, that you give them the opportunity to ask questions, you should get an acknowledgment by the custodian that they received it, and understand it. And so it’s not just the magic write a memo and send it to everybody. It is that plus. And then finally maintain it off-trail. Make sure you’ve gone through and tracked the process very clearly, and you can defend your process. 

So just diving in a little bit more detail. We talked already about this, identifying custodians and how to do all that. And I kind of talked about the stuff in the upper right-hand corner here. But in the lower left of the slide, we talk about exiting employees. And this is an important blind spot both in terms of issuing a legal hold and maintaining a legal hold. When you first issue a legal hold, you have to go out there where there are people who recently left the organization who was involved in this case where we may still have data from. That data could very quickly disappear. As well as during the legal hold process itself, if a custodian who is on legal hold leaves, do you have a process inside the organization where the IT team can go just simply look at a list and say is this person on legal hold? If they are, they can take steps to maintain their data as opposed to just recycle their computer. So exiting employees are very important, it’s a big blind spot for companies. You’ve got to look out for that, and you have to understand that it’s not just about people who leave during the process, it’s about people who might have left before you even put the legal hold in place in the first place. Is there still data for those individuals? And if so, it better get preserved. Because if it’s destroyed after the litigation ensures, even if the litigation is soon after that employee left, it’s about when the data was destroyed, not when the employee left. And again, exiting employees during the case. It’s as simple as giving your IT team a list of everybody who’s on legal hold, which should be relatively easy because you’re keeping that audit trail, right? Making sure that every single one of those individuals has that information and can look upon a list to make sure that they don’t accidentally destroy data. 

Composing a legal hold, I’m not going to go through all the case law that’s there. Just write it. Our best advice can be just put it on paper. You know to be or not to be aside, if you want to go before the Second Circuit and explain to them and have them judge as to whether or not it was appropriate or not for you to issue a legal hold, or just say it in writing. Then if you enjoy that, by all means, do it. But if you don’t want to find yourself defending your legal hold – in the Second Circuit case that overruled Judge Scheindlin said this. It doesn’t mean that an unwritten legal hold is going to be automatically found to be inappropriate, but you’re going to have to defend why you did it. So if you don’t want to put yourself in that position, just issue the written legal hold notice. 

And when do write it, be very clear. Who’s the subject of the legal hold? What should be preserved? Why was the legal hold issued? It’s one thing to tell your employees that, “hey save all your information,” with respect to this case. But if you talk in terms of why. We always tell people no matter what you’re doing in this world when you ask somebody to do something if you give them the why you’re asking them to do that, you’re more likely to get by and you’re more likely to get a better result, and you’re more likely to actually be satisfied with their response. And so we tell people you should really tell people why. Don’t try to hide the litigation. You’re never going to, it’s always going to be public, just state it out there to the custodians why you’re doing this, and that’ll help them understand what they should preserve, where they should preserve it when a legal hold is effective, and how it should be preserved as well. And provide a contact person. It’s very, very, very important. It’s very simple. At the end, just say if you have any questions, call this person or email this person or whatever process you have for that. It’s incredibly important for that. 

Do not, do not, do not, do not let it sound like a contract from the 1970s. When I went to law school in the early 90s, even then, there was a big emphasis on pulling back on the legalese stuff. You’re sending this stuff out to non-lawyers, and you may be sending it out to people with high school educations. You have to make sure that anybody can understand it. And my standard response is if your grandparents can’t understand your legal hold, then you’re not doing it right. Do not provide a legal analysis of the claims. In the case, I talked about earlier where we received a patent attorney, even though we knew we would get it dismissed in a matter of weeks, and we did, there was not a single word in our legal hold notice that we thought the whole thing was a pile of crap because the last thing you want to do is disincentive your employees. And so if I as an opposing counsel see that you’ve put in something that we believe these claims to be completely false, and we’re going to win – but we want you to retain all this information. I’m going to make the argument that you just gave your custodians a free pass to ignore the whole thing because you think it’s going to blow over. Just don’t do it. And likewise, don’t include management comments either. Just this is what we’re being sued for, we got to move forward with this, we have an obligation here so you should preserve and here’s why. 

Couple of more dos and don’ts. Telling people you know to read and acknowledge the notice, spend deletion strategies, identify data locations. Do not delete, copy, or move files unless specifically told. You don’t want them doing anything that’s going to mess with the metadata in any way. And then legal hold management, pretty straightforward and simple. Like I said before, distribute the legal hold, maintain the legal hold, have the audit trail. We use Total Discovery as our solution for our clients for legal hold. There are a couple of others out there in the market. They used to cost half a million dollars and install behind the firewall with a huge amount of work. Now you can get them for a couple of bucks per custodian on a regular basis. So it’s gone from completely unobtainable of something that only huge corporations can use to solutions now that really it’s cheaper to use the software then to even send emails and spreadsheets. So highly recommend that if you have the need for legal holds, you look at a way of automating it. Like I said, our choice is Total Discovery. We have a little bias, and in fact, we created it even though it’s a separate company these days. There are a couple of other companies out there as well. I don’t care which one you use. Just use one, and it’s a lot easier to do it. This is just a couple of screenshots from the Total Discovery system and see what you’d expect. Like you want to see that you can report on when items were sent, when they were acknowledged, when reminders were sent out, and other notations about it so that when you get called to defend your process, you can do so very quickly and easily. And I think this the last certification code, number 529. 

And I know we only have a couple of minutes left but a couple of quick things. When can a legal hold be released when an event isn’t concluded, meaning settlement or final disposition? Non-responsive custodians can always be removed. So if you put somebody on a legal hold and you find out later they have nothing to do with the case, let them go. And by agreement. You can come up with a list, just like you can define everything else in eDiscovery, you can agree with your opposing. Here’s when the custodians are going to be here, so we’re going to be maintaining data for, and that’s the end of the story. Reminders again are very important to send out during the litigation as well. People always ask us – are legal holds discoverable? The answer is who, when – who, and when, yes. In other words who you sent the legal hold to and when they got it are discoverable as well as I can ask them questions what they might have done in response. The actual legal hold notice itself is generally considered an attorney-client privilege, except under certain circumstances. These cases kind of cover those issues as well. So generally speaking, the actual legal hold document itself is not discoverable, but when you sent it and who you sent it to, and then asking those individuals what they did in response is fair game. 

And with that, I guess we’ll open it up and see if you have any questions. Mark, I know that people have probably asked a couple of questions along the way? 

Mark: Yes, I’ve been responding rapid-fire to questions as they’ve been coming in. But a couple of ones that were interesting that this is – our firm inherited a case, and we’re not confident that a proper hold was issued by a previous council. The case is over a year old. What should we do? 

Brian: Issue a legal hold today. The best thing you can do is when in doubt, issue a new legal hold and start like you never -. At least from the sense of protecting yourself as well as protecting your client, there’s nothing wrong with sending out another notice. Even if you don’t really know what was done before if you have any reason to suspect that the legal hold notice that was sent out wasn’t complete or wasn’t accurate or wasn’t effective, do it again. There’s no penalty for trying to make things better. And the courts would actually appreciate the fact that when you came in, you looked at that issue, and you tried to make it better and tried to improve things. Now your client may still have faced sanctions if they didn’t actually preserve data, but they might have a claim against their former counsel if it was the counsel’s fault too. 

Mark: Thanks Brian, one more. We’re at 2 o’clock. I’ll just squeeze this one last one in. Legal holds have been a hot topic for quite a while in the market. What about the custodian questionnaire part of it all? Can we be sanctioned if we don’t retain the copies of our custodian questionnaires, which is where custodians told us where their data was? 

Brian: That’s an interesting question. I mean, the actual responses to custodian questionnaires because they’re attorney-client communications, would be protected and so they wouldn’t be disclosable in the first place. And so the question as to whether you can get sanctioned for not maintaining something that is an attorney-client privilege communication… It’s probably not a good idea to destroy those, that information, just for general purposes. And so I’d say it’s not a great idea, I don’t necessarily see sanctions being imposed because of it because I don’t see when you’d ever even get there. But custodian questionnaires themselves, we think, are very, very important. Most of the legal hold tools that are out there have a custodian questionnaire functionality to them, or a custodian survey some call it, where you could ask custodians questions not just about where their data is or where the company might maintain data, but what they might know about the claims. Were they involved in a board meeting? Were they involved in this discussion or this invention or whatever? So custodian questionnaires are incredibly valuable things, and especially when it comes to legal holds so you can ask people – who else do you know that we should talk to? Who else might have information? Where is your information? Things like that really get down to making sure that your legal hold process has been good, or showing you where the holds are so you can plug them by doing something on a release or some notices. So the custodian questionnaires themselves are incredibly good, incredibly powerful tools. More and more people are going back to, and we encourage every single one of our clients to do. But actually maintaining them, I think you’d have an obligation. It’s good practice to maintain them. I don’t know if sanctions would really come into it because it’s not really something that would be discoverable in the first place, and it would be attorney-client privileged information and communications. 

One last thing Mark. What we’ve done in the past, we’ve kind of run out of time on questions. We will take all of these questions and answer them in our blogs over the next week or two. 

Mark: Perfect. Squeeze one more in? 

Brian: Sure. 

Mark: Frequency of reminders was a question that several people had. 

Brian: We generally tell customers that the default should be quarterly. Once a quarter send out a reminder that people are on legal hold. And a lot of tools – some of our clients come back and say well, but that means what if somebody’s on ten legal holds? They’re going to get ten reminders that means 40 emails a year reminding them of things. Most good systems these days will allow you to send a custodian one notice per month that lists all the holds they’re on where they can click to find more information if they need to. And quarterly is just a good kind of standard practice. Most people will remember stuff for 90 days without having to be reminded. And so that’s what we recommend. There is no bright-line rule for it. It’s one of those things where you can look at your individual corporate client and decide, or other organization, decide what is appropriate within the confines of that group. Maybe it’s monthly. Most of our clients choose quarterly or semi-annually. We only have a handful do it sooner than that. 

Mark: Well, thank you very much, Brian. I have a lot of work to do. This is a lot of questions. I’m going to be responding to people one on one. If you’ve got a question that didn’t get answered or asked, mmacdonald@biaprotect is my email address. I’m happy to put you in touch with one of our advisors or answer it myself. But Brian, Barry, Mary, ACEDS team, BIA team, thank you very much. Excellent presentation if I do say so myself. Have a great day, everybody. 

Mary: Thank you, guys. And I want to remind everybody that legal tech is coming up and Mark just gave you his email address. If you want to reach out to BIA and then if you haven’t received invitations for the ACEDS event, reach out to us – mary.mack@barbary.com, and we’ll make sure that you get an invitation there. We also have a pop-up offer. So those of you who attend all three webinars this week, you will be entered into a drawing for a CEDS package, and that will be applicable for you, or if you’re already CEDS for one of your colleagues, you’ll be able to gift it. So thank you very much, Barry and Brian, and Mark for a phenomenal webinar chuck full of great actionable information as they say. We get the most questions on legal hold when we’re doing our CEDS prep, and we’re very grateful for all the citations and in the wonderful advice that you’ve given. So thank you all for listening, and we will see you on the next webinar on the ACEDS webinar channel. Thank you.