Litigation Holds: Creating Effective Notices, Implementing Efficient Collection Processes, Protecting Privilege

Many lawyers take for granted that their litigation hold notices are sufficient even if they were created perhaps decades ago and only updated occasionally by adding another type of "medium" to the document definition. Many notices are too vague for non-lawyers to understand fully and not tailored to the specific matter at hand. Likewise, attorneys' litigation hold strategies and practices should be reviewed and updated to address how to preserve, collect, and produce--in an efficient way--ever-increasing "disappearing" messaging and video conferencing.

Even when notices are adequate, new case law indicates that the duty to preserve may continue after litigation, and disputes over the discoverability of litigation hold communications and strategies are more frequent. Privileges and work product protection are at risk when spoliation is alleged, but the level of evidence needed to pierce the protections varies from jurisdiction to jurisdiction.

Although the federal rules require only that conservation efforts be reasonable, many questions remain when information and data are in the hands of related entities or even third parties. While it is the client who may make missteps that result in motions
for sanctions, it is often the attorneys who take the brunt of the blame.

Listen as this experienced panel discusses best practices for bringing the litigation hold notice up to date to cover new and emerging media and instruct clients in the preservation and collection of these new categories of data.

1. Preservation triggers and retention policies: mitigating risk without over-preserving
2. Litigation hold notices: creation, implementation, and oversight
   1. What should be included in a litigation hold notice
   2. Who should send it
   3. Outside counsel
   4. In-house counsel
   5. Company managers
3. Who should receive it
   1. Related parties
   2. Third parties
   3. Interested parties
4. Oversight and ensuring continued employee awareness after implementation
5. Beyond email
6. Documenting the process
   1. Electronically
   2. Manually
7. Discoverability of hold processes and notices
   1. Attorney-client privilege
   2. Work product doctrine
   3. Loss of protection

The panel will review these and other key issues:

• What complexities must be considered in creating and implementing litigation holds?
• What types of new media must be addressed?
• What should in-house and outside counsel do to mitigate the likelihood of facing spoliation allegations?
• What defense theories exist to combat spoliation allegations?
• What policies should be effectuated to lessen or avoid potential penalties in a finding of spoliation?
• What strategies and policies will best protect privilege and work product status?