New Year's Resolution: Discovery Hold Policy

Posted on December 30, 2008 by Joseph O. Wilson

So you are in tip top physical condition, you give regularly to charity, you call your mom every other day, and you don't miss the sauce a bit.  Sounds like you're in the market for a New Year's resolution! 

How about this: does your company have a litigation hold policy that covers electronically stored information?  According to a recent Deloitte survey, 30 percent of U.S. companies do not have a formalized process in place regarding legal holds, which are policies that guard against the destruction of relevant evidence when legal action is threatened. 

As has been chronicled on this blawg and elsewhere, the potential pitfalls of poorly executed or nonexistent litigation hold policies are serious, and certainly outweigh the relatively small cost of implementing such a policy.

One thing is certain--electronic information will continue to play a larger and larger role in discovery.  Therefore, if your company has not yet implemented a policy to deal with it, shake the confetti out of your hair on New Year's Day, and pledge to tackle the problem early in the year.

Cheers!

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Don't Forget the Website!

Posted on December 8, 2008 by Chad Wiener

A corporation's website is often one of a corporation's most visible assets and as a result, websites are often given high priority by corporate marketing and public relations departments.  Websites should be paid the same attention when a corporation institutes a litigation hold.  Unfortunately, when a litigation hold has been instituted, forgetting about your website can be a dangerous oversight. 

In the recent case, Arteria Property Pty Ltd. v. Universal Funding V.T.O., Inc., (2008 WL 4513696, October 1, 2008), the District Court for the District of New Jersey held that websites should be treated the same as other electronic files and sanctioned the defendant corporation for failing to maintain the content on its website once litigation was reasonably anticipated. In Arteria, the plaintiff requested in discovery electronic snapshots or paper copies of the defendant corporation’s website. The defendant corporation failed to produce this information.  There was no dispute that the website was in existence at a time when it was at least reasonable that the corporation would be sued. As a result, the court found that the failure to produce the website constituted spoliation of evidence and imposed sanctions on the defendant corporation. 

The moral of this story?  Your litigation hold policy should have a mechanism in place to insure that your corporation's website, as an electronic document, is preserved in the same manner as other electronic data subject to a litigation hold.  

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Shameless Plug: E-Discovery Seminar/Webinar

Posted on September 24, 2008 by Katherine Perhach

Our very own, Kelly Twigger, will be one of the presenters at  "Law and Practice of Electronic Discovery," an electronic discovery seminar sponsored by the Milwaukee Bar Association, the Eastern District of Wisconsin, and Marquette Law School on November 6, 2008.  Topics include litigation holds and the preservation of electronically stored information, responding to requests to produce electronic information, best practices for reviewing electronic information, and ethical issues involved with the inadvertent production of privileged documents.  The seminar also includes a mock discovery session offering you the chance to observe lawyers in action as they demonstrate a discovery conference, a motion in limine hearing and the examination of an expert witness on electronic discovery issues. 

Here is a link to the seminar information including information on how to view the seminar via the MBA's live webcast.

Discovery of electronically stored information is unavoidable. With more than 90% of records now being created in a digital format, plaintiffs, defendants, and third parties must be knowledgeable about the myriad of legal and technical issues affecting electronic discovery.

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Court OKs Disk Mirroring Despite Confidential Client Matter

Posted on May 7, 2008 by Anthony P. Chan

In a recent case (Ferron v. Search Cactus, L.L.C., 2008 WL 1902499), the the District Court for the Southern District of Ohio ruled that information stored on a computer that contained content protected by the attorney-client privilege presented insufficient reason for a party to prevent the computer from being mirrored for electronic discovery purposes.

The plaintiff in the case case was an attorney who utilized his home and office computers for storing and working with information related to the representation of clients and the maintenance of lawsuits, but who also used his home computer to store his personal banking and credit card information. He objected to the defendants' discovery request so that the defendants could analyze the electronic evidence in question.

The court rejected plaintiff's arguments that by fulfilling defendants' request, irrelevant personal information would be revealed.  The court further rejected the plaintiff's argument that there would be a waiver of the attorney-client privilege if a third party, namely the forensic expert, were allowed the see information on the computer.  

Instead, the court found that the plaintiff attorney's failure to fulfill his “duty to preserve information because of pending or reasonably anticipated litigation", a duty that was "independent of whether defendants requested a litigation hold," justified the defendants' discovery request.

The court ordered the defendants' expert to review his findings in confidence with plaintiff prior to making any findings available to defendants.  At that time, the plaintiff could identify for deletion any information that was irrelevant and could also create a specific privilege log of any relevant information for which he claimed privilege.  After this review was completed, the expert was ordered to remove the information claimed as privileged and to provide all other information to the defendants.

Given the court's decision, it appears that confidential information residing on a computer will not preclude wholesale disk drive duplications for discovery purposes. However, there are best practices to safeguard data and to ensure that you are not commingling personal and client data:

  • Use two computers-- one for personal and the other for client matters. If one computer is more convenient, install additional hard drives (internal or external) to be used with the same computer. External hard drives have the added benefit of portability, but they also pose a higher risk of accidental loss or theft. So encrypt your data if possible.
  • Use separate email accounts for personal and client matters. That way no one else (not even the forensic expert) has to read about your beach party in conjunction with your client's information, unless, of course, the other party has met the burden of proving your sandy outing is relevant to the discovery in question.
  • Create a matter-centric workspace by using separate folders for individual client matters. Information pertaining to a client matter can then be managed more easily due to improved document retrieval.
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