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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Class Action and Other Litigation

Date & Time
  • event Date

    Tuesday, January 23, 2024

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE course will offer best practices for drafting clear, up to date, effective litigation hold notices to third parties and to the client's employees; writing compelling responses to notices from others; and implementing an efficient collection and preservation process. The panel will discuss what can trigger preservation obligations before suit is filed, what a defensible preservation process looks like, and strategies to ensure that custodians uphold their obligations.

Faculty

Lionel M. Lavenue
Partner
Finnegan Henderson Farabow Garrett & Dunner LLP

Mr. Lavenue’s practice focuses on patent trial litigation, including 19 bench or jury trials, and on creating and managing large patent portfolios. With experience in over 200 patent cases, he has managed or served as first chair in numerous district court litigations, including more than 60 cases in the E.D. Texas, almost a dozen patent infringement cases and/or matters under Section 1498(a) in the U.S. Court of Federal Claims, more than a dozen disputes under Section 337 before the U.S. International Trade Commission, and multiple arbitrations. Mr. Lavenue has particular insight into patent disputes involving international discovery under Section 1782. He has been involved in more than a dozen granted 1782 proceedings throughout the U.S., all with 100% grant rate. His broad client base spans an array of industries from aerospace to automotive to financial services to medical devices.

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Matt S. Jackson
Counsel
Sidley Austin LLP

Mr. Jackson brings 20 years of experience to his practice focusing on complex electronic discovery matters and all aspects of the Electronic Discovery Reference Model. He regularly advises Fortune 100 clients regarding best practices on information management, preservation, discovery-readiness solutions, defensible deletion and developments at the critical intersection of law and technology. Mr. Jackson emphasizes a holistic approach to data management for investigations and litigation, including ways to leverage institutional knowledge across matters and defensible but practical solutions to data issues, such as the application of AI and Advanced Analytics.

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Description

The duty to implement a litigation hold is triggered when a lawsuit or investigation can reasonably be anticipated, not just when a complaint is filed. Rumors and threats pose special problems. Pinpointing when to end a litigation hold can be equally perplexing.

Litigation hold notices and demands issued to opposing parties or to co-parties need to be clear and up to date, covering new categories of data. Overbroad or ambiguous notices can lead to disputes over relevancy and time frame, and this is complicated by overlapping holds, former employees, software changes, unresponsive custodians, and data in the hands of non-U.S. or third parties.

Legal practitioners have the burden of actively managing the process for their client and may bear the consequences of a client misunderstanding. Different issues arise for clients that are routinely in litigation and those for whom it is rare. Although the federal rules require only that conservation efforts be reasonable, counsel must be able to prove this by showing a standard protocol consisting of logical and well thought out steps.

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.

Outline

  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

Benefits

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 strategies and policies will best protect privilege and work product status?
  • What does a defensible preservation policy look like?