Legal Hold and Data Preservation Best Practices

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Legal Hold and Data Preservation Best Practices |1
Legal Hold and Data Preservation
Best Practices
Your Guide for Navigating the Complexities of
Preservation in the Digital Age
Table of Contents
Introduction: Preservation Emerges as a Unique Field of Legal Expertise ........................... 2
1. Research Studies Reveal the Current Challenges and Costs of Preservation .................. 3
2. Creating the Foundation for Preservation Involves Information Governance,
Training and Corporate Culture....................................................................................... 6
3. Recognizing the Triggering Event...................................................................................... 9
4. Determining the Scope of Preservation.......................................................................... 12
5. Implementing and Managing the Legal Hold.................................................................. 14
6. Tactics to Reduce the Cost of Preservation .................................................................... 16
7. Mistakes Happen – What To Do When Preservation Problems Arise ............................ 18
8. Releasing the Legal Hold ................................................................................................. 21
9. Looking Ahead At the Impact of Evolving Technology and Potential Rules Changes..... 23
10. A Judicial Perspective on Data Preservation Today....................................................... 25
Contributors......................................................................................................................... 28
Appendix A: Selected Cases Related to Data Preservation, Legal Holds and Spoliation..... 30
Appendix B: Other Reference Materials.............................................................................. 35
Appendix C: Reference Materials Related to Preservation and Proportionality................. 36

2| Legal Hold and Data Preservation Best Practices
Introduction
Preservation Emerges As Unique Field of Legal Expertise
The basis for Legal Hold and Data
Preservation Best Practices was the
exceptional work by the group of
presenters at the 2012 Conference on
Preservation Excellence, held in
Portland, Oregon in late September. The
conference focused solely on the area
of data preservation best practices. The
presenters wanted to address a
recurring issue heard at e-discovery
events that found only limited attention
being given to data preservation; often
followed by a speaker blurting out “We
could spend an entire day on preservation.” Well, we didn’t spend an entire day — we spent two.
The level of dialogue and depth of discussion on litigation holds and data preservation at the conference
was unprecedented. Following the event, at which appeared many nationally recognized experts in
electronic discovery and in-house practitioners from around the U.S., the consensus was that the event
succeeded in demonstrating that preservation is a unique field of focus.
This Guide on “best practices” continues the goal of helping lead legal professionals on the path to
excellence in legal holds and data preservation. Many organizations are working to instill sound data
preservation processes and creating awareness internally among various groups of the importance of
meeting the needs of the courts. However, few would rate themselves as achieving a level of excellence.
This Guide coalesces the discussions of some of the best minds in electronic discovery to discuss the
Aristotelian Ideal of what litigation holds and data preservation can be, not necessarily what it is today.
The real opportunity is to take the concepts and apply them in your workplace to achieve the following:
 Be better and more confident at what you do.
 Reduce your risk.
 Lower your costs.
 Strengthen your leverage when litigating.
 Make your time more productive.
 Make your co-workers’ time more productive.
 Annoy the courts less.
You are an integral part in advancing the practice of data preservation. The knowledge you gain by
reading this Guide is a concrete step in advancing the level of expertise in our community. Together we
can improve how organizations of all shapes, sizes and industries approach the task of responding to a
preservation obligation while building a valuable knowledge base for all to do better.
A panel at the 2012 Conference on Preservation Excellence

1
Research Studies Reveal the Current Challenges and
Costs of Preservation
Contributed by Nicholas Pace and Mikki Tomlinson
A reliable indicator that data preservation
standards are now starting to rise above the
noise is that quality research is being done on
the field. In 2012, two in-depth studies were
conducted which delved into the subject of
organizations’ attitudes and approaches to data
preservation.
The first of these unique studies was the RAND
Corporation’s Institute for Civil Justice’s Where
the Money Goes: Understanding Litigation
Expenditures for Electronic Discovery1
published
in April 2012. The 131-page report offers
insights into the costs of discovery, and perhaps
more importantly, the current challenges that a
corporation faces around
preservation.
RAND’s research team was
led by Nicholas
Pace and Laura Zakaras using
a case-study method to
solicit in-depth insight from
eight “very large”
corporations in regards to
costs across 57 e-discovery
productions. The identities of
the corporations have been
kept confidential.
Originally, the preservation phase of electronic
discovery wasn’t to be a focus of the study; but
when the ICJ researchers spoke with in-house
counsel they found many expressing “more
1
Pace, Nicholas M. and Laura Zakaras, “Where the
Money Goes: Understanding Litigant Expenditures
for Producing Electronic Discovery,” April 11, 2012,
Institute for Civil Justice, RAND Corporation.
concern about the challenges and costs of
preservation than about the costs of responding
to requests for production.” (p.85) With that
realization, a new round of interviews were
added to focus on preservation which took
place from October 2010 to June 2011.
One of the difficulties researchers found was
the challenge to quantify expenses associated
with preservation. Preservation costs are largely
driven by internal “soft” expenses in the form of
staff time of the legal and IT staff as well as the
distributed effort of custodians. Such costs are
inherently more difficult to track without
concerted effort.
Furthermore, even direct
expenses, such as investing
in a legal hold management
system, are distributed
across all “present and
future preservation needs”
and may be “intertwined
with other business
purposes” such as records
management (p. 86).
Further, “softer” costs such
as the opportunity cost of
lost productivity and
inefficiencies due
to not adopting improved preservation
processes represent a significant obstacle to
justify expenditures using traditional return on
investment (ROI) economics.
In spite of the challenges associated with
tracking preservation costs, all participants
“reported that expenses associated with
preservation now constitute a significant
portion of all of the company’s discovery-
“Participants ‘reported that
expenses associated with
preservation now constitute a
significant portion of all of
the company’s discovery-
related activities.’ Some
believed strongly that
preservation costs were
predominant.”

related activities.” (p.89) Some
further believed strongly that
preservation costs were the
predominant portion of e-
discovery expense (p.88).
Reasons cited included the
burden on staff of managing
information under “hold” and
the costs of storing data for long
periods. The most telling are the
burdens associated with
implementing and auditing legal
holds. (p.88) In these larger
corporations, some staff are
“dedicated to little other than
managing preservation chores.” (p.88)
Furthermore, one of the key drivers is a clear
tendency to over-preserve in the face of
increasing risk and uncertainty regarding what
constitutes reasonable effort.
It was clear from the study that more research
is needed to truly understand the total cost of
preservation. With better understanding of the
costs, companies will find it easier and more
imperative to invest.
The study explicitly addresses the benefits of
having an automated litigation hold
management system in place. (p. 92) Despite
the “potential for over-preservation” and the
“awareness that compliance could never be fail-
safe,” companies that had invested in an
automated legal-hold compliance system felt
better off. As reported, “moving from an ad
hoc response for legal holds that depends on
individual attorneys to craft and manage both
notice and compliance to a process that was
more routinized and more consistently
documented and auditable was felt to remove
some of the danger that the approach would be
challenged in the future.”
As we’ve seen with recent case law, there
continue to be conflicting opinions across
jurisdictions regarding the scope and mechanics
of legal holds and preservation. As the report
notes, “in the context of
preservation, a world in which IT,
corporate policies, and the law
all are rapidly evolving in
sometimes-different directions,
such complaints may have more
traction than is usually the case.”
(p.94) The participants worry
about where they sit on the
“continuum between total
acceptability and serious
sanctions.” (p.94) There is a
unanimous and resounding
desire for clear guidance on the
scope and manner of
preservation from the courts – which is one of
the clear messages of this study to
policymakers.
eDJ Group’s Mikki Tomlinson echoed the need
for more attention to data preservation
practices. She reported on a study her team
had recently completed in 2012 regarding
Information Governance, which included a
series of questions about litigation hold
processes. The survey results were compiled
from 113 respondents.2
Although the final report has yet to be
published, the detailed survey shows that,
according to Tomlinson, “it is clear that litigants
understand the importance of [legal hold
management]” yet approximately only two
thirds have a documented legal hold process. Of
the respondents that do document their
preservation efforts, more than half either do
not use a legal hold management system or
aren’t sure if they do.
When aggregated, eDJ’s research shows the
following (see chart):
 55% don’t track holds or issue holds
2
http://ediscoveryjournal.com/2012/09/signs-of-
information-governance-maturity/

 11% use spreadsheets to track
 17% track with internal system
 13% track with commercially available
system
Two-thirds of the survey respondents either
don’t issue holds, don’t track holds or use a
spreadsheet to track holds. Given that the
expectation of a documented legal hold process
has been around for almost a decade, this
percentage of organizations taking a rather
haphazard approach is a remarkably high
number.
The conclusions one can draw from the RAND
Corporation and eDJ Group reports are that
while large corporations are concerned about
holds and the costs incurred to oversee
preservation, a majority of organizations are
likely not meeting the standard of care required
by the federal courts.
How Companies Manage Litgation Holds
Source: eDJ Group & ViaLumina Ltd. Information Governance
Survey, Sept. 2012, N = 113
Don't track or issue holds
Use manual process, i.e.
spreadsheets
Track with internal system
Use commercial system

2
Creating the Foundation for Preservation Involves
Information Governance, Training and Corporate Culture
Panel: Mikki Tomlinson, Elleanor Chin, David Cohen, Charlotte Riser Harris, and Mark Tamburri
The best time to prepare for litigation holds and the preservation duty is when you are not in
the middle of a crisis. Setting a strong foundation in your organization is the key to avoiding
trouble in the future and lowering the overall burden and stress around data preservation. Best
practices include proactively establishing information governance protocols, putting response
teams in place, documenting policies and training employees to build a culture of compliance.
 Establish an Information Governance Protocol
Information Governance (IG) can be defined as
a comprehensive program of controls,
processes, and technologies designed to help
organizations maximize the value of
information assets while minimizing associated
risks and costs. IG consists of a number of
components including:
 Policy development
 Records management
 HR policies and procedures
 Security and risk management
 Legal hold
Many organizations choose the “save
everything” approach but this can grow
untenable over time, despite the decrease in
storage costs and improved search technology.
Data continues to get harder to control with the
emergence of ‘cloud computing’ and a variety
of new communication platforms, i.e. social
media, mobile.
The typical focus in evaluating record
management and preservation is on the storage
costs, meaning that by keeping more a
company has to buy more and more devices for
storage. There may be less focus on lost
productivity, which can be significant.
Litigators know the real costs of trying to keep
everything include the following:
 The “smoking gun” problem – employees
letting down their guard in email, resulting
in casual communications that can create
an impression of culpability.
 The sheer cost of looking through vast
quantities of data is tremendous.
One effective approach to get management
buy-in for moving forward with an Information
Governance program can be to position IG as an
asset management tool, rather than to focus
purely on the benefits of mitigating risk. The
value is in managing information and managing
people while eliminating inefficiency.
Finally, setting out to do an all-encompassing IG
program is nothing if not daunting. Be
opportunistic if you don’t have any formal
programs in place. Look for the opportunity for
small wins in order to build credibility and
momentum behind the efforts and to show
their return on investment (ROI).

 Establish a Discovery Response Team
Organizations should start by establishing a
Discovery Response Team. Such a team should
consist of key stakeholders from different
disciplines including Legal, IT, HR, Information
Security, Records Management, or other
internal teams that may regularly be called
upon to assist in the event of a potential
lawsuit. Outside counsel may also be a valuable
participant to provide ongoing advice and
guidance to the team.
The primary goal of a discovery response team
should be to establish lines of communication
cross-functionally so that various groups are
ready to go when called upon. Having a team in
place reduces organizational inefficiency that
could result in potentially risky delays when
prompt action is required.
The Discovery Response Team should have
protocols in place to help scope legal hold
notifications, identify potentially responsive
data sources, ensure automatic deletion
protocols for e-mail and other enterprise
repositories are suspended as needed, help to
assess risk of spoliation, etc.
Another benefit of cross-functional response
teams is to engage employees through
education, communications and setting of
expectations. The team can also seek synergies
across departments, such as leveraging the
work of other security, records management,
and related IT initiatives.
 Document Organization’s Records Retention Policy
As a first step, data mapping (a.k.a. content or
“source” mapping) can assist in understanding
where data is retained by the organization, how
the data is being retained and/or replicated,
and how such data is routinely being disposed.
Learn by asking questions, either proactively or
in response to a discovery obligation, and
capture the institutional knowledge for future
reference. Taking the opportunity to develop
even a partial data map prior to any active
litigation is a valuable investment, and allows
for the development of knowledge without the
pressure of an active litigation schedule.
Having a well-documented, reasonable and
consistently-applied records retention policy
can support a safe harbor for destruction of ESI
due to routine operations of IT systems and
protocols. However, a party must also act
affirmatively to prevent such routine
destruction once a preservation obligation has
been triggered.
A robust records retention policy enables a
litigant to take advantage of FRCP Rule 37 which
provides for a “safe harbor” when ESI is lost and
unrecoverable “due to the routine operation of
an electronic information system.” It continues,
“[a]bsent exceptional circumstances, a court
may not impose sanctions under these rules on
a party for failing to provide electronically
stored information lost as a result of the
routine, good-faith operation of an electronic
information system.” F.R.C.P. 37(f)
Affirmative action requires an understanding of
how information is being retained and routinely
disposed of, whether through routine
operations of IT systems or through human-
intervention. It also includes the ability to
effectively suspend such operations. Examples
abound in case law of organizations failing to
suspend automatic deletion of email and ESI.
Consider the impact of evolving technologies as
part of your information governance programs

– “bring your own devices” (BYOD), social
media, cloud computing, etc. BYOD is a new
term coined to describe when an employee
uses his/her own device for business purposes
(i.e. an iPad, personal laptop or smart phone).
Organizations are well-advised to consider what
happens when the information retained on such
devices is subject to the organization’s duty to
preserve.
The final component of sound implementation
of a records retention policy is to conduct
regular audits to ensure that the retention
schedules are being observed. If problems arise
later, having an audit trail showing that the
information was properly managed – and
regularly checked – can go a long way to
demonstrating to a court or regulatory agency
that your organization operated in good faith.
 Train Employees about Preservation Responsibilities
Employee education can be one of the most
effective steps for assisting with preservation
efforts. The two primary goals are to teach
employees about:
 Responsibilities as a custodian
 Identifying potential trigger events and
alerting legal department when one arises
Look for opportunities to piggyback on ongoing
training efforts such as annual ethics
“refresher” courses or safety trainings. It is also
advisable to enlist Human Resources help by
including materials in new employee training.
One presenter described a successful effort
involved designing a 15-minute training about
“Being a Custodian.” She was very mindful to
keep it short and to the point. Then, in order to
get adoption, she presented it as part of a
regular weekly meeting among senior
managers. By exposing the leadership team to
materials, she was subsequently invited to
repeat that exercise across the organization to
raise awareness of this important responsibility.
 Build a Culture of Compliance
Corporate culture cannot be built quickly, but
take a long view and cultivate the value of
compliance by reinforcing positive behaviors.
Employees must internalize that preservation is
part of their role in protecting the company.
Any spoliation will most likely undermine your
case, not the opposition’s.
In order to dissuade non-compliant or adverse
behaviors, show that any intentional efforts to
destroy information will likely fail due to
multiple copies of data in back-ups and other
locations, and the fact that no data is ever truly
deleted with today’s powerful forensic tools.
Have sanctions in place to punish employees
that do not follow protocols, ranging from
letters of reprimand up to more serious
consequences. Such actions will show other
employees and the courts that the organization
takes compliance seriously.
Anecdotally, it is common practice for
employees to circumvent automatic deletion of
emails and other ESI. Teach employees that this
is not encouraged and show ways to properly
manage documents, helping them differentiate
what they truly need versus what they can do
without. At the same time, consider means to
configure IT systems that discourage saving in
unauthorized or non-standard locations while
channeling saving to centrally managed or
standardized locations.

3
Recognizing the Triggering Event
Panel: Craig Ball, Dawn Radcliffe, Mollie Nichols, Dave Walton, and Paul Weiner
The so-called “trigger event” is a misnomer. It is often not a single event, but a series of signals
based upon which a legal team must choose to initiate preservation efforts or not. Once the
choice has been made to proceed with saving information in anticipation of potential litigation
or regulatory investigation, the process again may be piecemeal. Ensure a sound understanding
of what a trigger means, how trigger events are identified and promptly acted upon.
 Understand the Legal Definition of ‘Trigger’
A party is obligated to preserve evidence when
it has “notice that the evidence is relevant to
litigation or when a party should have known
that the evidence may be relevant to future
litigation.”3
Having a defined process is critical
when identifying and determining whether a
trigger event has occurred, including what
constitutes a triggering event, criterion for
evaluating a trigger, and methodologies to
ensure awareness of possible triggering events
(reporting, education, ownership of the
process). As Craig Ball characterizes it, such
events are less a trigger than a valve.
The events or actions that constitute a trigger
are too numerous to list, but The Sedona
Conference® has defined some factors which
are listed in the sidebar.
Trigger events can be tricky to identify – there
are no bright lines in this area. While in most
cases it may be clear (e.g., a patient death or
filing of a formal employment discrimination
3
Eckhardt v. Bank of America, N.A., 2008 U.S. Dist. LEXIS
36951, 2008 WL 1995310, at *5 (W.D.N.C. May 6, 2008)
claim), more often than not there are occasions
when a few facts emerge and it is unclear what
will happen eventually. Engage legal counsel
and let the “lawyering” begin – analyzing the
information at hand, looking for opportunities
to get more data to corroborate, analyzing the
risks and then provide an opinion. Once a
decision is made, act and stand by it. Be aware
of the intersection between the assertion of
work product privilege and the triggering of a
legal hold.

 Establish a Process for Investigating Potential Cases
Some important considerations when
developing a process for recognizing a trigger
are clearly establishing who owns the process,
educating internal parties and defining their
reporting responsibilities. While legal personnel
are aware of these events, pay extra attention
to communicating the importance to managers
across the organization so that they are
routinely reminded of their critical role and the
consequences if they “sit” on key information.
Work with your business unit managers to
educate and help them keep this obligation top
of mind. One head of litigation support reviews
past cases to understand litigation patterns.
Once a complete picture has been developed,
the manager publishes to the company in plain
English the types of issues for which a quick call
or e-mail to the Legal Department is required.
When those are received, the legal department
immediately follows up to assess the facts in
the case. Generally people want to do the right
thing, so give employees the tools and training
to do so.
Occasionally opinions differ between
stakeholders such as line of business managers,
legal, and outside counsel. Priorities and
perceived risks may vary – such as outside
counsel’s desire to take affirmative action in a
particular case, while inside counsel may be
more cautious due to the larger ramifications
for the organization of responding to a
preservation duty. Try to focus on the legal
issues at hand and the importance of taking
affirmative action in response to the triggering
event.
As with all phases of responding to discovery,
an auditable record is critical, should your
actions be called into question by an opposing
counsel or court. Document your decisions and
factors considered when deciding whether or
not a trigger has occurred. Follow a regular
process — ad hoc decisions with unpredictable
outcomes make demonstrating to the court
that you have a defensible good faith process in
place far more difficult.
 Don’t Hesitate to Issue a Legal Hold
As a rule of thumb, if two people are in a room
talking for more than 30 minutes as to whether
or not there has been a trigger, it’s time to issue
a legal hold. Too often legal practitioners
equate a hold with an entire string of events –
broad data collection or an inevitable legal
action. Such a perception can be paralyzing
because it creates barriers to action.
A legal hold need not be an onerous task. It may
start with just a communication to key people
to hold onto certain files and data in place until
it is determined if further action is required.
Don’t wait and over-analyze for too long. At a
minimum, take steps to secure any ephemeral
data that could be needed at later time. Be on
the lookout for records that might be subject to
automatic deletion or ESI that would be
irretrievably lost or altered.
The court will be looking back on your decisions
in two or three years’ time with the benefit of
20/20 hindsight. Imagine you are testifying in
court about your actions and make sure that
you will have good answers should that
eventuality occur.

THE SEDONA CONFERENCE® COMMENTARY ON LEGAL HOLDS:
THE TRIGGER & THE PROCESS, 2010 (Excerpts)
Guideline 1: A reasonable anticipation of litigation arises when an organization is on notice of a
credible probability that it will become involved in litigation, seriously contemplates initiating
litigation, or when it takes specific actions to commence litigation.”
Guideline 2: Adopting and consistently following a policy or practice governing an organization’s
preservation obligations is one factor that may demonstrate reasonableness and good faith.
Guideline 3: Adopting a process for reporting information relating to a probable threat of litigation
to a responsible decision maker may assist in demonstrating reasonableness and good faith.
Guideline 4: Determining whether litigation is or should be reasonably anticipated should be based
on a good faith and reasonable evaluation of relevant facts and circumstances. Sedona identifies a
series of factors pertinent to the issue of whether litigation should be reasonably anticipated. They
include:
 The nature and specificity of the complaint or threat;
 The party making the claim;
 The position of the party making the claim;
 The business relationship between the accused and the accusing party;
 Whether the threat is direct, implied or inferred;
 Whether the party making the claim is known to be aggressive or litigious;
 Whether a party who could assert a claim is aware of the claim;
 The strength, scope and value of a potential claim;
 The likelihood that data relating to a claim will be lost or destroyed;
 The significance of the data to the known or reasonably anticipated issues;
 Whether the company has learned of similar claims;
 The experience of the industry;
 Whether the relevant records are being retained for some other reason; and
 Press and/or industry coverage of the issue directly pertaining to the client, or of
complaints brought against someone similarly situated in the industry.
Copyright © 2010, The Sedona Conference®. Reprinted courtesy of The Sedona Conference®. The full text of this
Commentary is available www.thesedonaconference.org.
 Recognize the Trigger as a Plaintiff
The duty to preserve is shared equally by both
plaintiff and defendant, a fact that is often
overlooked. Some of the most notable opinions
regarding preservation have involved the failure
of plaintiffs to preserve and document their
efforts. Oftentimes, the duty to preserve arises
much earlier for the plaintiff, based on when
they reasonably anticipated that they may seek
relief in court. And pay attention to claiming
work product on a matter – a sure sign that
litigation was likely being anticipated.

4
Determining the Scope of Preservation
Panel: Michael Arkfeld, Maura Grossman, Denise Talbert, and Mark Tamburri
After discussing “when” to preserve, this section turns to the “what,” “where” and “how
much.” At the center of any preservation duty are the key players, or those individuals with the
most direct knowledge and information regarding the matter at hand, and the data sources
which may have recorded those processes and timelines. Simple in theory, yet complex in
practice.
 Identify Key Players and Data Sources At the Outset
Start with the facts of the case such as the
known or anticipated causes of action. What
records will support these claims or defenses?
Who are the key players, and where do they
retain potentially relevant information? Where
else may data be retained that is within the
“possession, custody and control” of the
organization (including agents or third-parties)?
A party has a duty to preserve all relevant
documents—but not multiple identical copies—
in existence at the time the duty to preserve
attaches and any relevant documents created
thereafter. A party must preserve “what it
knows, or reasonably should know, is relevant
to the action, is reasonably calculated to lead to
the discovery of admissible evidence, is
reasonably likely to be requested during
discovery and/or is the subject of a pending
discovery request.” [Zubulake]
The standard for preservation is “reasonable
and good faith” – consider how cooperation
and proportionality can be applied to limit the
scope of preservation. Also, be prepared to
expand or reduce the scope as the case evolves
– and be certain to document the decision-
making process in case you are called to defend
your actions.
Having a Discovery Response Team in place
comprised of representatives from various key
functions in the organization can aid in
investigating scope. Tools like data or content
maps, and record-keeping of decisions made
previously, can make the process far more
efficient (rather than “recreating the wheel”
every time).
Querying key players from the outset for
potential sources will assist in getting the most
accurate picture of what is relevant. Be sure to
tap into this important source of knowledge
and adjust the scope accordingly. Use
custodian interviews to solicit input from those
involved. Consider “early case assessment”
tools to review key documents or emails from
key players to refine topics and participants.
Some ways to limit scope, especially in the pre-
litigation phase, include:
 Applying tiers of relevancy and adjusting
preservation actions accordingly (e.g.,
emails versus text messages)
 Analyzing threats (e.g., one disgruntled
employee versus pattern of abuse)
 Exploring if the court can offer relief
(although courts generally lack incentive to
limit preservation early)

 Pay Attention to Danger Areas, i.e. Bad Actors, Ephemeral Data, Etc.
At the outset, identify areas of greatest risk of
spoliation which might include bad actors,
automatic-delete functions, ephemeral data,
employment changes, computer upgrades, and
the like. Act quickly to take control of such data
sources to avoid losing the “safe harbor” from
spoliation caused by the routine operation of IT
and information management systems.
If there is a chance of a “custodian-as-culprit”
situation, such as in a criminal matter or
regulatory investigation, then coordinate with
IT and secure their personal data repositories.
Actions such as imaging hard drives or
quarantining devices are likely not necessary for
all custodians, only those which may have an
incentive to destroy data in order to protect
their personal interests.
 Avoid the Pitfalls (and Real Costs) of Over-Preservation
At the outset, conduct a risk analysis and
understand the value of the case. Be aware of
the potential implications for an overly-broad or
overly-inclusive scope:
 Business interruption caused by responding
to and complying with hold instructions
 Added storage expense (particularly
involving backup tapes, or rescinding
retention policies for database and archive
applications that routinely purge aged or
obsolete data)
 IT infrastructure and operational impacts
(e.g., responsiveness of search queries
across bloated data sets, or the time
required to perform a routine backup for
disaster recovery)
 Subsequent discovery cost and risk
associated with retaining information
beyond its otherwise useful life and that
would otherwise not have been available
for future discovery
 You Don’t Have to Be Perfect Out of the Gate
Be pragmatic about preservation. If a case is
from 2008, don’t look for text messages from
last week. Lawyers are trained to make risk
assessments and decisions on these subjects.
Look at the facts of the case and put something
reasonable and good faith in place – and be
prepared to clearly explain what you did and
why you did it.
Your initial preservation steps may not be
perfect, and the scope of preservation may
need to expand later. Sanctions are less likely
when timely actions are taken that can be
deemed reasonable. A case management order
or some other remedy may be in order to limit
risk of hindsight.
In cases where there is some uncertainty at the
outset, consider “taking out an insurance
policy” by duplicating or preserving a back-up
medium that corresponds with a time frame or
custodians applicable to the case. At least that
way you have something to fall back on. It isn’t
necessary to run out and save every GPS or SMS
unless you have some reason to believe there is
something relevant there.

5
Implementing and Managing the Legal Hold
Panel: Craig Ball, Elleanor Chin, Robert Owen, Dawn Radcliffe, and Susan Small
Time to roll up your sleeves and make sure your organization is fulfilling its duty to preserve.
This phase is dictated by proper, consistent execution. Notifying custodians, suspending auto-
deletion routines, tracking acknowledgments and being able to demonstrate your good faith
efforts through a detailed audit trail are all critical to success.
 Effective Legal Holds Communicate While Audit Trail Provides Defensibility
At the core of the litigation hold process is the
notice which must be delivered to custodians in
a timely manner. Following is a checklist that
encompasses the contemporary standard for a
legal hold as adapted from Pension Committee:
 Issue hold notification in a written form
 Issue the hold in a timely manner
 Identify and focus on key players
 Obtain affirmative custodial responses
and continue to monitor compliance
 Include clear, direct instructions for
compliance to custodians
 Periodically re-issue holds so that the
obligation is fresh in employees’ minds
 Counsel must supervise employees’
preservation efforts and compliance
 Suspending automatic deletion and
preserving backup media should be
undertaken when warranted as part of
the overall mix of preservation steps.
Custodian interviews after the hold
notification has been issued can ensure
ongoing compliance and provide more
clarity about the nature, quantity and
location of potentially relevant
information. When possible, utilize
technology to automate the litigation hold
to maintain a consistent process and
efficiently create a detailed and complete
audit trail.
It is critical to fully document the process
both for continuity and to demonstrate
and defend the organization’s efforts.
Following the process consistently is also
much easier to defend than the actions of
an ad hoc approach.
 Notification Letter Must Be Comprehensible and Defensible
A preservation notice must meet the following
two objectives:
1. Clarity – the goal is comprehension on the
part of the audience as to desired actions.
2. Defensibility - The content will aid in
persuading a judge after the fact that the
hold was both reasonable and acted upon.
In short, you have to instruct custodians to not
only save potentially relevant data, but how to
identify and save it. Another element is that it
should also state the consequences if the
instructions are not followed.
For a core group of key custodians, consider
follow-up communication that is personal
rather than merely a standardized notice. For

example, start with, “Mary, you are the
controller of this company so you will have
spreadsheets and financial analysis pertinent to
this matter….” This instantly communicates to
the recipient that it is their responsibility to act.
The sender should be a person that commands
the attention of the recipients, as per the
relevant case law. For example, a notice sent by
a paralegal may not have as much impact on
the CFO as a notice sent from the general
counsel or COO.
Finally, the legal hold process must have a
mechanism that provides for affirmative
acknowledgment on the part of those expected
to take action – i.e., has the notice been
received, understood and agreed to be
complied with.
 Focus on Data Repositories, Not Just Individual Custodians
In today’s communications infrastructure, data
is often at risk of destruction through normal IT
operations (e.g., actions that routinely
overwrite data) or the nature of the technology
itself. Protect data that is potentially at risk by
communicating the need to put the data
repository on hold. Pay particular attention to
automatic email deletion or other processes
that systematically manage retention and
disposition. Watch for unique data sources that
may be relevant – such as mobile phone
location data or video surveillance recordings,
and plan for how you can preserve in advance.
Establish a process that considers preservation
obligations when data is at risk – an employee
leaving the company or changing jobs, an IT
initiative to upgrade software or replace aging
hardware, or a records management initiative
to get data retention into compliance (e.g.
“shred days”).
Mitigating such risks begins with establishing
clear lines of communication between legal and
other corporate functions such as IT, Records
Management, HR and information security.
 Counsel Must Understand Their Supervisory Role
In-house and outside counsels have an
obligation to supervise preservation and
collection efforts. Lawyers must monitor activity
and provide an audit function for the
organization’s process. A failure to engage in
the preservation process – such as in the case of
a ‘fire-and-forget’ memo issued from outside
counsel – will not be tolerated by the courts.
 Trust, But Verify
In many cases, the effort to collect data is not
immediately necessary, in particular for pre-
litigation holds when it is not clear if production
will ever be required. In appropriate
circumstances, custodians may be relied upon
to make good decisions and preserve-in-place,
as long as the urgency and clear expectations
have been communicated and understood.
However, it is wise to conduct regular audits of
your preserve-in-place strategy to validate that
data will be available when and if it is needed.

6
Tactics to Reduce the Cost of Preservation
Panel: Michael Arkfeld, Charlotte Riser Harris, Susan Small and Dave Walton
Preservation can get expensive quickly, especially if the case involves a significant number of
custodians. Yet the desire to minimize ongoing expenses cannot justify spoliation.
Limiting costs, or at least making them align with the issue under consideration, is one of the
primary factors that drive continuing discussions around proportionality. The Sedona
Conference’s first Principle of Proportionality states: “The burdens and costs of preservation of
potentially relevant information should be weighed against the potential value and uniqueness
of the information when determining the appropriate scope of preservation.”
Different approaches can help alleviate, or at least postpone, the more expensive stages of
collecting, processing and reviewing ESI as long as a sound litigation hold process is in place.
 Leverage Technology to Your Advantage
Many new technology offerings help ease the
burden of preservation by automating
processes including automated legal hold tools,
early case assessment (ECA), and sampling. New
software tools can demonstrate due diligence,
engage custodians, and solicit feedback which
can accelerate the process with less effort.
Tools to automate the legal hold notification
and compliance process are valuable. While
using a spreadsheet to track a hold is better
than nothing, a manual approach consumes
much more time on the part of the legal staff
and is inherently error-prone.
Understanding your data infrastructure can also
help – are there redundant data sources that
can be ignored as duplicative when determining
the scope of a hold?
 Communicate Early and Often with Outside Counsel
Communication is absolutely critical for cost
reduction in preservation. With regard to
working with outside counsel, the client and
counsel often have an incomplete
understanding of each other’s worlds and
priorities. Communication can help clarify
expectations on both sides.
Outside counsel can and should be clear about
their objectives and priorities in the
preservation process, as it relates to the total
litigation objective and risk. Inside counsel and
managers can reassure and educate outside
counsel so there is comfort with internal
processes. Preservation should be a joint effort
rather than something completely controlled by
outside counsel or the client.

 Look to the Court for Assistance
The Rule 26(f) or pre-trial ‘meet and confer’ can
address any issue the parties choose and can be
the single most important factor to reduce
costs.
It is not always necessary to address
preservation in the initial conferral and often
preservation will be substantially underway by
the time of a Rule 26(f) conference. But by
demonstrating that a reasonable and good faith
effort has been made to preserve data, parties
can focus on negotiating a fair and reasonable
scope of discovery. For example, a litigant could
offer to produce ESI for a limited number of
custodians initially, while ensuring data from a
broader set of custodians is being preserved
should additional discovery be warranted.
The courts can also help in some situations,
such as when facing asymmetrical discovery.
The ‘meet and confer’ endeavors to ensure
litigants discuss preservation at the initial
conference. It directs parties to present any
disputes about preservation to the court as
soon as possible, so that the judge can issue
appropriate orders regarding what should or
should not be preserved in the earliest stage of
litigation.
One organization noted that they have
successfully used a burden analysis at the “meet
and confer.” In a class action suit, the other side
requested individual screen shots for every
member of a 500,000-person class. A project
manager went step-by-step to see how long a
single collection would take for a single person.
In the end, the production for one person was
30 pages long — the entire process would take
8 months at a cost of $12 million. The data-
driven analysis provided leverage to negotiate
to keep costs down through sampling.
“One organization noted that they
have successfully used a burden
analysis at the ‘meet and confer’….
The data-driven analysis provided
leverage to negotiate to keep costs
down through sampling.”

7
Mistakes Happen – What To Do When Preservation
Problems Arise
Panel: Ron Hedges, Mollie Nichols, Denise Talbert and Paul Weiner
Not everything can go according to plan, and that is true with preservation too. Despite your
best efforts, data can get lost or destroyed inadvertently, or worse, intentionally destroyed by a
bad actor trying to cover their tracks.
Whatever the cause of data loss, it is critical to act quickly and if necessary notify the court and
opposing counsel in order to explore options to remedy the situation.
 Counter Any Spoliation with Prompt Attention and Transparency
Once you uncover a preservation failure, it is
wise to notify the court and opposing party as
soon as practical. The best way to avoid harsh
sanctions is to operate in good faith and
transparently.
Remember, perfection is not the standard, so
don’t overreact. Upon learning of spoliation, ask
yourself the following questions:
 Is the lost data relevant and is its loss likely
to have any impact on the requesting
party’s ability to litigate?
 Is the data replicated elsewhere?
If you believe the ESI is not relevant,
demonstrate that it is not by corroborating with
samples from other sources or offering up
affidavits and relevant witnesses for
depositions. Look for alternative sources for the
data that was allegedly destroyed, whether
from a forensic image of a computer, going to
back-up tapes or locating others in the
organization with the same information.
Once information is gathered and a remedial
plan has been developed, then talk to the other
side. Explain what happened, identify what may
have been lost and explore options to remedy
any potential impact of the lost information.
Also show that your preservation efforts to date
have been well executed and sound so that you
can show that this situation was an anomaly.
Demonstrate that the organization took actions
to educate and/or reprimand the employee at
fault in order to reinforce a culture of
compliance.
 Plan for ‘Points of Failure’ in Data Preservation – Bad Actors, Personnel
Changes, Hardware or Software Upgrades
If there is the possibility of bad actors involved,
it is important to anticipate potential
destruction and lock-down relevant data and
repositories prior to notification. Look for
individuals that could be harmed by the
information in their possession.
Occasionally individuals may be concealing
information in their possession not directly

related to the matter at hand, but which is
otherwise compromising (e.g. pornography,
personal communications, or materials related
to a job search).
Be in tune with potential trouble spots when
data is in jeopardy and individuals involved may
be working to solve an immediate problem that
could result in inadvertent spoliation. An
example would be a faulty laptop which is
inhibiting a person from being productive but
which may also contain responsive data.
Regular reminders of legal hold obligations will
help mitigate such risks, while also working
closely with HR and IT in order to avoid issues
such as someone walking out the door before
their information can be secured properly.
 If the Other Side Is At Fault, Exercise Patience Before Approaching the Court
Be sure to not overplay your hand if you learn
about spoliation by the opposition. The first
reaction of many attorneys is to say, “Let’s go
file a spoliation motion.” Before running to the
judge, send the other side a letter to lay out the
issue and ask them to explain it.
Oftentimes the situation may not appear as dire
once more facts have been discovered. It only
weakens your credibility by making you look
reactionary and uncooperative in front of the
judge if the spoliation ends up being a non-
issue.
If you write letter requesting an explanation
and you don’t get a satisfactory response back,
then you can go to the court. Explain that you
don’t want to be here, that you tried to remedy
the situation and that you are there because
you now need the help of the court.
True Life Tales of Spoliation
During the 2012 Conference on Preservation Excellence, several attorneys
shared some of their experiences with spoliation and the actions they took to
remediate it. Following are their three stories which are being presented
without attribution.
Situation 1 – Key Custodian Ignores Hold and Deletes Email
Anyway
The General Counsel of a large corporation sent out legal hold notices to
executives and other key custodians pertaining to a significant commercial
dispute. During follow-up interviews with executives, it was determined that a
key custodian had failed to adhere to the litigation hold instruction, even after acknowledging it
affirmatively. This person had deleted a large amount of email in complete disregard to the hold.
One of the dynamics in this case was that opposing counsel was very focused on electronic discovery, so
it was clear this would be an issue that would be under particular scrutiny. Since the spoliation was
found through the interviews, it was privileged information.

To remedy the situation, the legal team had back-up tapes pulled and restored in order to recover and
analyze the deleted emails. The spoliation was disclosed to opposing counsel and the legal team offered
the executive up for deposition. The deposition took place and the witness was prepped well and clearly
answered about the motivation behind what had occurred. In addition, all of the recovered emails were
supplied to the opposing counsel. Finally, the executive who deleted the email received a letter of
reprimand and had to take training about the company’s obligation to preserve evidence.
In the end, the spoliation became a non-event and there were no motions for sanctions.
Situation 2 – Preserved Laptops Are Mistakenly Wiped by IT
It was a large wage and hour class action case and the defendant issued and tracked legal holds to key
custodians, as well as field employees and even several putative class members. As part of the process, a
system was put in place to collect the laptops of any custodians who were leaving the company.
Despite many protections in place, an IT staffer who was not involved in the case decided one day to
open the locker and wipe the 15 computers that had been set aside from departing employees.
The legal team came clean to the other side immediately. Through multiple “meet and confers” they
were informed of the systems and controls that were in place. An affidavit was provided from the
employee who had wiped the computers explaining in detail what had happened and why it was a
mistake.
At this point, opposing counsel overplayed its hand and went directly to the judge looking for sanctions.
In front of the judge, the defense team showed all of the parts of the preservation process that had
gone right in order to show that this was an aberration. By going to other sources and back-up tapes to
show that all of the information that was lost was available elsewhere – and that it was irrelevant to the
case – the team was able to show to the court that there was no prejudice. The judge appreciated the
efforts and the case proceeded without any further action required.
Situation 3 – The Dreaded Phrase: “We Cleaned Things Up”
The case involved a key custodian who had hoarded tons of data, including having hard drives tucked
away in his desk drawers. During preparation for the case, he was talking about how client records were
handled and he revealed that even though they hadn’t archived information for two years – he had
done so just 10 days prior because he thought it’d be a good time to “clean things up.”
The good news is that the data had not been destroyed; rather, it had just been sent away. He also
showed that that he had kept a log of everything that was archived.
The legal team disclosed everything to the opposing counsel immediately. The defense showed how
much data it had collected from this person – including how many similar items from other custodians.
The other side was given the index that showed that everything was still available upon request. It
ended up being a non-event despite the poor timing.

8
Releasing the Litigation Hold
Panel: Mikki Tomlinson, David Cohen, Charlotte Riser Harris and Mark Tamburri
Oftentimes, releasing a hold and returning to normal retention and disposition practices
represents a significant challenge. Many organizations maintain legal holds ad infinitum, either
out of fear or simply failing to make a decision otherwise. However, it’s important to release
holds in order to both demonstrate active monitoring of preservation efforts and avoid costly
over-preservation. What factors determine when a hold can be released and what does a
release process entail?
 Notify Custodians In Writing When Resuming Normal Retention Schedules
When releasing a hold, send a release
notification to affected custodians so they can
return to normal document retention and
disposition practices. As with the initial legal
hold notification, send the release notification
in writing as well so that there is an audit trail.
When releasing a hold, check to see if the
custodian is being asked to preserve data for
other cases. If so, remind them of their other
obligations and help determine what data is
truly no longer needed. And remember to
release data that was specifically collected,
stored and/or disseminated for a particular
case, including that being held by third-party
service providers.
It is also important to consider the implications
of returning to normal retention and
destruction practices. For example, a mailbox
may be placed on hold by suspending routine
destruction based on age. The custodian then
comes to rely on email being there when he or
she wants it. The hold is subsequently released,
say after three years, and when returning to a
90-day retention schedule suddenly months or
years of emails become subject to auto-
deletion. It can come as an unpleasant surprise,
and thus it is helpful to fully inform the
custodian of the implications of returning to
“normal” retention practices.
Other special considerations that may come
into play include when data is being preserved
unbeknownst to an employee due to a
confidential matter, or data is being preserved
without recalling the specifics for doing so.
 Determine Who Has the Authority to Release Legal Holds
Identify the individuals within your organization
who can determine when a duty to preserve no
longer applies. The circumstances could be
straightforward, such as when a pending matter
concludes, but they can also be subtle.
Empower a person who can make the call and
record that decision so it can be shown to have
been made in good faith.
The situation is further complicated when the
hold was triggered by an event that never
proceeded to litigation. Do you retain the
information until the statute of limitation ends
or is there another parameter to consider?
Do you have a routine process to trigger an
analysis of holds that may no longer be
required?

 Retrieve Data from Third Parties Such as Law Firms and Vendors
Data pertinent to a particular case may reside
outside of the organization, such as with a law
firm or electronic discovery vendor. Contact all
third-parties and have the data destroyed or
returned to the organization in accordance with
the company’s records management policies.
Similarly, once the case is concluded consider
the disposition of documents produced to the
other side. You may have a case management
order in place from the beginning that says the
receiving party will destroy all the documents
that were produced to them. The end of the
case is the time to remind the opposing party of
that obligation.

9
Looking Ahead At the Impact of Evolving Technology and
Potential Rules Changes
Panel: Michael Arkfeld, Maura Grossman, Ron Hedges and Paul Weiner
Technology continues to move at a dizzying pace, creating both opportunities and challenges
for the legal team. On a positive side, advances in search and retrieval technologies can make
finding potentially relevant information easier. Yet advances in technology are also changing
the ways we create, store and access information as well.
In response, the law must also adapt to the new realities placed upon litigants by technology.
Changes to the Rules in the United States move slowly – very much by design. We find
ourselves in a gray area where the burdens placed on organizations due to new data sources
and quantities that were unimaginable even a decade ago are not yet contemplated by the
Federal Rules of Civil Procedure. Are the common law principles on which our legal system is
based up to the task?
 Be Agile in Adapting Preservation Policies for New Technology
New devices are showing up in the corporate
environment – smart phones, tablets and other
mobile computing devices – which impact the
scope and magnitude of litigation holds. New
modes of communication are being used by our
employees for business – instant messaging,
internet email and social media like LinkedIn
and Facebook – which legal teams must take
into consideration when planning for
preservation.
Additionally, new storage mediums are
proliferating – especially with “cloud
computing” and the internet – which must be
considered when developing a sound data
preservation process.
Preservation efforts must adapt to address
these evolving technologies. It is key to
understand how they are being utilized in the
line of business and also how and where the
data is kept – and, even more critically, for how
long.
The duty to preserve evidence requires the
producing party to make a good faith effort to
identify and manage relevant discoverable
information – whether it is paper, email, social
media or another unforeseen technology. Apply
your best judgment, and act in good faith, and
be cooperative. Doing so will help courts and
litigants navigate through times of rapid
change.
 Rule Makers Continue Deliberations on Potential Changes
There are a number of efforts underway to
address how preservation and production of
data can be managed, particularly in complex
litigation where there is asymmetry between

parties. The process to consider changes in the
Federal Rules formally kicked off at the Advisory
Committee on Civil Rules’ 2010 Conference on
Civil Litigation at Duke Law School and has
proceeded through multiple gatherings, with
the Judicial Conference Subcommittee on
Discovery Mini-Conference on Preservation and
Sanctions in 2011 being a key milestone.
While these processes continue, it is not
possible to predict what form changes would
take, if any. Under consideration is a change to
Rule 26 that would establish national federal
civil practice framework addressing scope,
triggering events, sources and types of
information, and timeframes. Another potential
area is to amend Rule 37 so that remedies and
sanctions are standardized nationally so at least
there is predictability across all federal
jurisdictions about what would happen should
spoliation occur.
Regardless of the ongoing discussions, it is
important to remember that Rules of Civil
Procedure, both at the Federal and State level,
often take years to catch up with the realities of
technological change.
 Using ‘Technology Assistance’ in Early Case Assessment May Eventually
Move to Preservation
How will technologies like “technology-assisted
review” factor into standards for information
governance, data disposition and preservation?
The concept of Technology Assisted Review
(TAR), also commonly referred to as “predictive
coding,” is becoming more openly discussed in
the electronic discovery community. Advances
in computer-assisted search and retrieval can
reduce costs and improve the quality of
information – both are positive advancements
for our legal system.
The concept of “technology assisted
preservation” has been discussed but the
technology is still years away from fruition. In
theory, the legal team could implement a legal
hold throughout an entire corporate network
for potentially responsive information following
a trigger event. However, that would assist a
team but it is unlikely that it would supplant the
need for a written notification to custodians
since the “preservation tool” would never have
comprehensive access to all forms of
communication and information.

10
A Judicial Perspective on Data Preservation Today
On the afternoon of September 28, 2012, former U.S. Magistrate Ronald J. Hedges (D.N.J.)
interviewed U.S. Magistrate Judge Paul S. Grewal (N.D.Cal.) about the current state of data
preservation in the Federal courts. These two jurists had both ruled on spoliation sanctions in
noteworthy commercial litigations. The following are excerpts from their talk which have been
edited for clarity and brevity.
Challenges for Litigants Regarding Legal Holds
Judge Grewal: On litigation holds and how the
Rules might provide a solution here, and
whether parties should face different standards
in different jurisdictions. The answer to the
latter question is “no.” We should not be
subjecting parties on either side to the
uncertainty of their obligations and having that
uncertainty depend in large part if not
exclusively on whether they get sued on one
side of the river or the other.
I think that is unworkable. This uncertainty is
not only unworkable from the parties’
perspective; it’s also frankly unworkable for the
court.
The reality is that we’re struggling with these
issues and are looking to our colleagues for
guidance. This is why I spend as much time
educating myself about what other courts
elsewhere in the country are wrestling with.
The problem is that the Rules Enabling Act does
impose certain limits on what issues can be
addressed by
either
amendments
to the Federal
Rules or even
by local rules.
Even if you can
clear that
hurdle in
terms of what
the rules might
provide. The
interests at the
trial court level in promulgating standards is
going to be somewhat mixed.
Expectations for “Meet and Confer”
Judge Grewal: One of the things I require for
parties that appear before me at the Case
Management Conference is a joint statement
confirming all the different issues they’ve met
and conferred on in the 26(f) and under our
local rules. I have to tell you more often than
not, when it comes to preservation of ESI the
report I get is that “the parties have agreed to
preserve data.” I’m thrilled — because if they
can’t agree on that then we’ve got real issues
coming down the road.
I do have expectations that regardless of your
past experience with ESI, you need to be
informed. The excuse to be ignorant on these
issues – if it ever carried any water – has long
since fallen by the wayside. Folks have alluded
to the fact that you can go to the Sedona
Conference site and in about 20 minutes you
can get educated on at least what you should
be talking
about. It’s fair
to say I’m less
tolerant of
that ignorance
than others
may have had
just a few
years ago. I
think for good
reason.
Hon. Ronald Hedges and Hon. Paul Grewal

Judge Rader’s Model Order for E-Discovery in
Patent Cases
Judge Grewal: A model e-discovery order by
Chief Judge Rader offers guidelines for the
number of custodians, production to be made,
number of search terms, etc. I’ve implemented
it and usually the fight is about custodial
production and in what order. I’ve also issued
an order that those principles are equally
applicable when working with third parties on
discovery.
I think the major benefit of that model order for
patent cases is that the model order has caused
further dialog in the courts about what are
appropriate limits. It has provided a specific
framework for proportionality and other ideas
that we’ve wrestled with. I think that’s the way
the order has proven most useful.
What I keep trying to impart on parties is that
ultimately the point is there needs to be some
ex ante discussion on what limits apply. I don’t
care what those limits are, but forcing that
dialog and discussion earlier in the dispute
benefits everyone.
A Successful “Meet and Confer”
Judge Grewal: I have seen meet and confer with
very mixed results. Let me offer some thoughts
about what I’d like to see to answer your
question coming out of a 26(f) process.
The easiest thing for the court to assess to see if
people are meeting in good faith is to look at
the objective evidence. Who was there? When
did you meet? How long did you meet? What
was the agenda? Those basic questions in 75
percent of the cases get at who was really the
problem. That’s a key issue.
The main thing I want to see out of meet and
confer is that there was give and take. I can
hear about compromise in teleconferences. The
lawyering art – far too few understand that it is
an art, give-and-take. That’s what the judge
wants to see.
Non-Attorneys at “Meet and Confer”
Judge Grewal: The trend is to have the “top
guy” or “top woman” in the case. I’m much
more interested in having someone there who
knows what they’re talking about. Let’s be
honest, the first chair trial lawyer may have the
knowledge and competence, but most of the
time that’s not true. It doesn’t impress me if
you brought senior talent to the “meet and
confer” if you didn’t also have the person there
who knows what is going on. The expert doesn’t
have to be a lawyer. In many cases, it shouldn’t
be a lawyer.
Do You Use Social Media?
Judge Grewal: I do. I have a Facebook account. I
use Twitter. I’ve played around on more
obscure offerings. There are many reasons I do
it. One of them is I used social media before I
was a judge and it seemed to be reasonable to
do it after I was on the bench, of course in a
different capacity.
The main reason is that social media is critical to
understand how these tools work because
they’re going to come up in cases. The analogy
I draw is what if I was a judge in traffic court
and I never learned how to drive? The real
reason is I want to stay up-to-date to see how
real people use this stuff in real life. Where I
happen to sit I am responsible for all civil
discovery in my cases. As a U.S. Magistrate, one
of my most important roles is serving as a check
on the executive branch when serving search
warrants. When the FBI, IRS or anybody else
want to see what’s on your Facebook or Gmail
account, they come to my district and come to
me with an application for a search warrant. If
I’m not familiar with those subjects, I’m not
doing my job.

The final point is that under our various mutual
treaties, it’s not just our government with
interest in this data but over a hundred
countries around the world who by treaty have
the right to ask DOJ to seek that information on
their behalf.
Critical Role of Non-Attorneys in Court
Judge Grewal: I think in general one thing I find
encouraging about this conference is the rigid
lines between legal, HR, compliance, etc. are
blurring. Fluency in the language of your
colleagues is critical. Early conversations about
these issues are critical, and ahead of a massive
dispute in Federal court. Policies and
procedures direct such discussions. In a
particular case it’s important for various
stakeholders to get together and understand
how these obligations are going to be met.
I welcome the participation of non-lawyers who
have expertise into court. I understand the
dynamics of control, but if your legal partner is
unwilling or uninterested in having a non-
lawyer present to engage with a judge on a
certain issue at least that person needs to be
brought into the conversation ahead of the
hearing so the person knows what he or she is
talking about.
It’s important for the non-lawyers in the room
to understand that very few judges I know
would look askance at having a direct
conversation at the hearing. In fact, many of us
presume the lawyers are less sophisticated on
the issues so they have a presumption against
them when they walk into court.
Importance of Records Management
Judge Hedges: One thing is it’s great to have
records policy, but if the policy is not
implemented, it’s useless. Have the policy -- and
a process so people know about the guidelines
and follow them.
Legal Holds and Defensibility
Judge Grewal: Whatever the hold strategy, I
want to know that what you are teaching your
people was actually practiced. That goes a long
way towards avoiding any claims of bad faith.
So audit, audit, audit.
The second thing I want to drill on is the notion
of consequence. In so many disputes I wrestle
with whether the individual was a rogue
employee or not. It goes a long way if we
understand where someone went off the grid
that there was some consequence. If I am being
told of all of these reasons why this happened
and I find there was no consequence, then I
have to consider how seriously of an argument
that the error was a one-off occurrence.
Two Ideas to Take Home
Judge Hedges: One, whatever you do,
document it. Keep a record of what you do and
why. Two, Audit. Whatever you’re doing you
have to show that the instructions were being
followed.
Judge Grewal: Transparency. Remember the
lesson of Watergate. It wasn’t the break-in, it
was the cover-up. In so many of these instances
the cover-up is what the judge can feel. Disclose
early, disclose often. Think about education.
Goes back to what you’re teaching your
employees and your clients, and how you
document the directives so they understand.
For this to work, to rise above the mediocrity, I
think it’s critical that the silos be broken down
between these different functions. I can’t
underscore enough in many ways I don’t see
“preservation excellence” as a legal function at
all. Legal has a lot to say about data
preservation and is accountable for it, but the
notion that this is something that legal owns
exclusively is outdated. Organizations and
groups must reflect that reality. That’s what
courts expect to see.

Contributors
(in alphabetical order)
Michael Arkfeld — Principal of Arkfeld and Associates, and Director of the Arkfeld eDiscovery and Digital
Evidence Program (AEDEP) at the Center for Law, Science & Innovation, Sandra Day O'Connor College of
Law, Arizona State University. Arkfeld has extensive experience in e-discovery, having literally written
the book (Arkfeld on Electronic Discovery and Evidence).
Craig Ball — Board Certified trial lawyer, certified computer forensic examiner, electronic evidence
expert, and award-winning columnist. Ball routinely serves as a court-appointed special master and
consultant in computer forensics and electronic discovery and has served as the Special Master or
testifying expert in computer forensics and electronic discovery in some of the most challenging and
celebrated cases in the U.S.
Elleanor Chin — Partner, Davis Wright Tremaine LLP. Chin concentrates on litigation and alternative
dispute resolution with a particular emphasis on electronic discovery. She has over 12 years of litigation
experience, and represents clients in matters ranging from software contract disputes to prosecution of
noncompetition agreements.
David Cohen — Partner and Practice Group Leader for Global Records & E-Discovery Practice Group,
Reed Smith LLP. Cohen has more than 25 years of commercial litigation experience, has served as
special e-discovery counsel in many cases, represents companies in complex litigation matters, and also
counsels clients on records management and litigation readiness issues.
Hon. Paul Grewal — U.S. Magistrate Judge, United States District for the Northern District of California
who recently wrote Apple, Inc. v. Samsung Elecs. Co. Ltd., No. C 11-1846 LHK (PSG) (N.D. Cal. July 25,
2012) that addressed spoliation issues.
Maura Grossman — Counsel at Wachtell, Lipton, Rosen & Katz. Grossman has represented Fortune 100
companies and major financial services institutions in corporate and securities litigation, including civil
actions and white-collar criminal and regulatory investigations. Her practice presently focuses on
advising lawyers and clients on legal, technical, and strategic issues involving electronic discovery and
information management, both domestically and abroad, as well as on matters of legal ethics.
Hon. Ronald Hedges — Principal in Ronald J. Hedges, LLC and former United States Magistrate Judge in
the United States District Court for the District of New Jersey. Hedges has extensive experience in e-
discovery and in management of complex civil litigation matters. He serves as a special master,
arbitrator, and mediator specializing in e-discovery and privilege issues.
Mollie Nichols — Partner, Redgrave LLP. Nichols brings more than twenty-five years of experience as a
litigator, law professor and legal consultant on issues involving electronic discovery and evidence in both
civil and criminal litigation. Prior to joining Redgrave LLP, Mollie was the Director of eDiscovery and
Litigation Services for an Am Law 50 firm. In this role, Mollie was responsible for overseeing the firm’s
eDiscovery, litigation technology, cases on-line and court procedures groups.
Robert Owen — Partner, Sutherland Asbill & Brennan LLP. Owen has more than 35 years of experience
in New York commercial litigation and is a nationally recognized adviser to financial services, energy and
technology companies. He has handled hundreds of cases before federal and state courts and
arbitration panels throughout the United States. Prior to joining Sutherland’s Litigation Practice Group,
Bob led the commercial litigation boutique firm of Owen & Davis PC, which he co-founded.

Nicholas Pace — Social Scientist, The RAND Corporation Institute for Civil Justice. Pace has contributed
his expertise in civil justice–related research methodology to many projects for the RAND Institute,
including a recent study he led that explored issues associated with class actions against insurers. Other
recent projects include researching the legal and implications of electronic discovery.
Dawn Radcliffe — Discovery Manager, TransCanada Pipelines. Radcliffe is responsible for managing the
electronic discovery efforts and services for the organization, and has extensive experience in e-
discovery, litigation support and hold order management. Radcliffe has also served as eDiscovery
Project Manager for Vinson & Elkins among numerous other IT and practice support roles.
Charlotte Riser Harris — Manager, Practice Support, Hess Corporation. Harris has twenty-five plus years
in the legal industry including paralegal, team leader, project management, litigation support, and
department supervision and management. She has proven expertise in the restructuring of a litigation
support department around the demands of electronic discovery.
Susan Small — Litigation Administrator, Assurant. Small has twenty-plus years of experience in the legal
industry, including serving as litigation administrator where she oversees among other tasks the
litigation hold process for Assurant. She has also served as a senior litigation paralegal at a law firm.
Denise Talbert — Partner and Chair of eDiscovery, Data and Document Management Practice (eD3),
Shook Hardy & Bacon LLP. Talbert is a partner in the Global Product Liability Group and Business
Records Management & Consultation Practice. She has over 16 years of experience in cost-effective
discovery management in complex litigation, including the preservation, collection, organization, review,
and production of documents.
Mark Tamburri — Senior Associate Counsel and Vice President of Litigation, University of Pittsburgh
Medical Center. Prior to joining UPMC, Tamburri was a partner at Reed Smith where he was in charge of
associate development for the firm’s Commercial Litigation Group. His extensive experience includes
commercial litigation matters, prosecuting and defending claims against corporate fiduciaries, defending
media companies in libel cases and helping the public to access government records.
Mikki Tomlinson — Director, Strategic Consulting Division, eDJ Group Inc. (parent company of the
eDiscovery Journal). Tomlinson has over 20 years of executive, management and litigation support
experience in the legal and e-discovery industries. Her diverse experience ranges from creating a
successful legal consulting and training company to developing and managing the litigation support
department of a Fortune 250 corporation. Prior to the eDJ Group, Mikki served as E-Discovery Advisor
for Chesapeake Energy Corporation.
David Walton — Member and Co-Chair of E-Discovery Task Force, Cozen O'Connor. Walton is a member
in the firm’s Labor & Employment Group and co-chair of the firm's E-Discovery Task Force. He
concentrates his practice on all aspects of employment litigation. He has extensive experience in
litigating matters involving restrictive covenants, trade secrets, fiduciary duties, and defending
employers targeted by discrimination lawsuits.
Paul Weiner — Shareholder, National e-Discovery Counsel, Littler Mendelson, P.C. In his current role,
Weiner provides focused guidance and expertise on electronic discovery matters to Littler's lawyers and
their clients, ranging from case and client-specific advice about meeting preservation obligations,
addressing initial "meet and confer" obligations, handling court appearances that address eDiscovery
matters, developing strategies for efficient and effective data harvesting, review and production, to
implementing cost-shifting/reduction strategies.

Appendix A – Selected Cases Related to Data
Preservation, Legal Holds and Spoliation
Case Reference Description
Scentsy Inc. v. B.R. Chase LLC, No. 1:11-cv-
00249-BLW, 2012 WL 4523112 (D. Idaho
Oct. 2, 2012)
Copyright infringement case where defendant filed a motion to compel
forensic examination. Court concluded plaintiff's litigation hold and document
retention policies were "clearly unacceptable" (lack of written legal hold;
timing of verbal hold coinciding with filing complaint; routine email disposition
after 6 months). Court ordered additional depositions (along with potential for
additional sanctions if spoliation found to have occurred).
Hynix Semiconductor, Inc. v Rambus, Inc.
No. C-00-20905 RMW (N.D. Cal. Sept. 21,
2012)
Upon appeal, two federal court cases (Hynix v Rambus and Micron Tech v
Rambus) were remanded after finding differing conclusions regarding
spoliation claims with nearly identical underlying facts. Originally, in Hynix, the
court determined that Rambus did not spoliate documents. The Federal Circuit
court concluded that the court had "applied too narrow a standard of
foreseeability." Following reconsideration, the court concluded the earlier
trigger date and that Rambus had therefore committed spoliation.
Apple v. Samsung Elecs. C. Ltd. No. C 11-
1846 LHK (PSG) (N.D. Cal. July 25, 2012)
In this patent infringement case, court agreed with Apple in seeking an adverse
inference for data spoliation due to failure to suspend automated deletion of
email (and lack of email being produced from 14 key fact witnesses for relevant
time period)
Chin v. Port Authority of New York New
Jersey Nos. 10-1904-cv(L), 10-2031-cv(XAP),
2d Cir., July 10, 2012
In this Second Circuit Court of Appeals employment discrimination opinion,
Chin sought a spoliation sanction for Port Authority's purported gross
negligence for failure to issue a written legal hold; court rejected SDNY "per se"
gross negligence argument, finding that in this case there was no prejudice
suffered due to ample evidence being produced by the Port.
Omogbehin v. Cino 2012 U.S. App. LEXIS
12545, (3d Cir. N.J. June 20, 2012)
Employment discrimination suit where plaintiff filed a motion alleging
spoliation; court concluded that plaintiff had failed to prove that supposed
emails had in fact existed (an no allegation of faulty legal hold processes)
In re: Oil Spill by the Oil Rig “Deepwater
Horizon” in the Gulf of Mexico on April 20,
2010 E.D.La., MDL No. 2179
Former BP drilling engineer indicted on April 24, 2012 on that charges he
deleted text messages relevant to the ongoing lawsuit (obstruction of justice)
GenOn Mid-Atlantic LLC v. Stone &
Webster Inc., No. 11 Civ. 1299(HB)(FM)
(S.D.N.Y. Apr. 20, 2012)
In this contract dispute, defendant alleged spoliation by data held by a third-
party; court found that the duty to preserve did extend to data under "practical
control" of the party, but denied sanctions due to lack of prejudice shown.

BYU v. Pfizer Inc. (D. Utah, April 16, 2012) BYU alleged that 1) Pfizer’s initial inquiry for legal advice following its
withdrawal from the research arrangement was a preservation “triggering”
event and 2) that Pfizer’s 1994 litigation “sensitized” it to the possibility that
additional interested parties might come forward. Court denied that the duty
to preserve had attached 12 years prior to filing complaint.
Danny Lynn Electrical v. Veolia ES Solid
Waste No. 2:09CV 192-MHT, 2012 U.S. Dist.
LEXIS 31685, (M.D. Ala. March 9, 2012)
In denying a motion for sanctions late in the case, the court concluded that the
defendant had not acted in bad faith, that an effective litigation hold process
was in place, and the degree of prejudice suffered was minimal.
Tracy v. NVR Inc., 04-cv-6541L (W.D.N.Y.,
March 26, 2012)
In this FLSA class-action lawsuit, plaintiffs moved to compel production of
litigation hold notices and list of recipients, based on preliminary showing of
spoliation of potentially similarly-situated opt-in plaintiffs (despite ordinary
protection that hold notices are protected by privilege). The motion was
denied on the grounds that the plaintiffs failed to demonstrate that the duty to
preserve extended to potential opt-in plaintiffs, nor that spoliation had
occurred. In contrast, the court did grant NVR's motion for spoliation against
one of the opt-in plaintiffs.
State National Insurance Co. v. County of
Camden 08-cv-5128 (D.N.J. March 21,
2012)
Finding the County's efforts severely lacking ("including a failure to institute a
legal hold after the trigger event, suspend auto-deletion of email, or retain
copies of any back-up tapes"), the Court ordered monetary sanctions despite
finding no actual spoliation
Pouncil v. Branch Law Firm Case No. 10-
1314-JTM-DJW (D. Kan. Mar. 7, 2012)
In this malpractice product liability case, motion to compel defendant for
failing to take proper steps to preserve ESI (including court-ordered litigation
hold, additional discovery and monetary sanctions for costs)
915 Broadway Associates, LLC, v. Paul,
Hastings, Janofsky & Walker, LLP 2012 NY
Slip. Op. 50285U (N.Y. Sup. February 16,
2012)
In this malpractice real estate transaction case, the court agreed with motion
for spoliation sanctions and dismissal of the claim with prejudice due to a
failure to take adequate steps to preserve potentially relevant evidence
(including failure to implement an effective litigation hold process, suspend
automated destruction of email, decommission and discarding of an integral
email server)
Pippins v. KPMG LLP 279 F.R.D. 245
(February 3, 2012)
During the stay of discovery in this FLSA class-action lawsuit, KPMG sought a
protective order limiting the scope of preservation efforts due to the burden
imposed by preserving hard drives for thousands of former employees that
might fall within a potential FLSA collective. After failing to resolve the dispute,
the court concluded that it would be premature to limit scope of preservation.
Voom HD Holdings LLC v. EchoStar Satellite
LLC 2012 NY Slip Op 00658 (January 31,
2012)
Contract dispute, confirming lower court sanctions due to EchoStar failed to
issue a legal hold once litigation could be “reasonably anticipated” and failed to
suspend automatic email deletion until four months after the suit was filed
resulting in a loss of relevant emails.
Perez v. Vezer Industrial Professionals, Inc.
2011 WL 5975854 (E.D. Cal. Nov. 29 2011)
Personal injury case where no litigation hold was implemented and "minimal, if
any, efforts were made to preserve relevant documents and ESI"; small
monetary sanction awarded to plaintiff (due to lack of gross negligence and
minimal prejudice suffered)

NACCO Materials Handling Group, Inc. v.
Lilly Co. (No. 11-2415 AV, 2011 WL
5986649, W.D. Tenn. Nov. 16, 2011)
In this case involving improper access to secure dealer website, Lilly failed to
take reasonable steps to preserve (e.g., failure to issue company-wide litigation
hold due to scope of allegations, to suspend auto-delete and routine
overwriting features, or to collect ESI), resulting in court-imposed preservation
actions and monetary sanctions.
N.V.E., Inc. v. Jesus J. Palmeroni, et al. Civil
Action No. 06-5455 (ES), 2011 U.S. Dist.
LEXIS 107600 (D.N.J., September 21, 2011)
Wrongful termination case where defendant admits to not issuing a legal hold
and found to be "was grossly negligent in failing to preserve" records (e.g.,
destroying ESI from a computer system that was subsequently upgraded)
E.I. Du Pont De Nemours & Co. v. Kolon
Indus., Inc. No. 3:09cv58, 2011 WL 2966862
(E.D. Va. July 21, 2011)
In this countersuit, Kolon was found to have failed to implement an effective
legal hold process and key players indicating intentional destruction of relevant
documents; adverse inference in lieu of default judgment (citing efforts in
issuing litigation holds and subsequent efforts to preserve files)
Haraburda v. Arcelor Mittal USA, Inc. No.
2:11 cv 93, 2011 WL 2600756 (N.D. Ind.
June 28, 2011)
Employment discrimination case where defendant chose to defer issuing a
litigation hold or implement a process to preserve evidence until after the Rule
26(f) conference; court agreed with motion to compel and ordered placing an
appropriate legal hold
Gaalla v. Citizens Medical Ctr. 2011 WL
2115670 (S.D. Tex. May 27, 2011)
Plaintiffs sought sanctions in response to the defendant’s failure to preserve
disaster recovery backup tapes. The court ruled against sanctions, finding
preservation efforts that were undertaken were reasonable, including issuing a
timely litigation hold, making timely snapshots of relevant email accounts and
instituting journaling.
Surowiec v. Capital Title Agency, Inc. 2011
WL 1671925 (D. Ariz. May 4, 2011)
Finding gross negligence for inadequate preservation efforts and discovery
misconduct, including failing to issue a timely litigation hold and suspend
routine document destruction when the defendant should have reasonably
anticipated litigation, the court imposed monetary sanctions and an adverse
inference instruction.
E.I. du Pont de Nemours and Co. v. Kolon
Indus., Inc. 2011 WL 1597528 (E.D. Va. Apr.
27, 2011)
Despite a claim by the plaintiff that critical information was lost, the court
denied sanctions for willful spoliation, citing that a defendant’s duty to
preserve is not absolute, but must only be reasonable and proportional to the
circumstances.
Steuben Foods, Inc. v. Country Gourmet
Foods LLC WL 1549450,WDNY April 21,
2011
Breach of contract case where defendant asserted plaintiff's reliance on a
verbal legal litigation hold and failure to produce at least three emails
warranted spoliation sanctions; court found no evidence of spoliation or
resulting prejudice
Star Direct Telecom, Inc. v. Global Crossing
Bandwidth, Inc. 2011 WL 1125493
(W.D.N.Y. Mar. 21, 2011)
Among numerous discovery disputes, plaintiff sought spoliation sanctions for
destruction of emails; court concluded that duty to preserve arose when
complaint was filed (not earlier as contended by Star Direct); however, failing
to issue a litigation hold nor take adequate steps to preserve amounted to
gross negligence and imposition monetary sanctions
Green v. Blitz U.S.A., Inc. 2011 U.S. Dist.
LEXIS 20353 (E.D. Tex. Mar. 1, 2011)
Product liability case where court found defendant failed to preserve ESI (and
even encouraging deletion in line with records policies); monetary sanction and
order to provide Memorandum to opposing counsel in every lawsuit for
forthcoming five years

Philips Electronics North America Corp., et
al. v. BC Technical No. 2:08-CV-639-CW-SA,
2011 WL 677462 (D. Utah Feb. 16, 2011)
Copyright infringement and misappropriation of trade secrets; failure to issue
timely litigation hold while key players "wantonly destroyed incriminating
evidence", resulting in sanctions and summary judgment for plaintiff
United States v. Halliburton Co. 2011 WL
208301 (D.D.C. Jan. 24, 2011)
Plaintiff requested additional production of emails from an expanded list of
custodians, despite significant production that had already been completed.
The court determined that the plaintiff had failed to demonstrate that missing
emails were crucial, and that additional discovery was not warranted.
Orbit One Communications, Inc. v.
Numerex Corp. 2010 WL 4615547 (S.D.N.Y.,
Oct. 26, 2010)
Despite the failure to "engage in model preservation," the court denied a
motion for spoliation due to insufficient evidence that any lost ESI was relevant
to the case (rejecting notion that failing to issue a written legal hold is "per se"
gross negligence).
Victor Stanley, Inc. v. Creative Pipe, Inc., et
al. (D.MD, Sept. 9, 2010)
Copyright and patent infringement, unfair competition involving purposeful
destruction and overwriting of files in order to obfuscate incriminating
evidence, resulting in sizable monetary sanctions and default judgment on
copyright infringement
Medcorp, Inc. v. Pinpoint Tech., Inc. 2010
WL 2500301 (D. Colo. June 15, 2010)
Case involving intentional destruction of 43 hard drives containing relevant
information; finding negligence, court issued monetary sanctions and adverse
inference instruction against Medcorp
Jones v. Bremen High School Dist. 228
2010 WL 2106640 (N.D. Ill. May 25, 2010)
Wrongful termination where defendant failed to issue a litigation hold until
well after trigger event, lack of meaningful guidance to key players, and
continued automatic destruction of ESI (including backup tapes for email);
finding gross negligence, sanctions included cost shifting and additional
depositions
Passlogix, Inc.v.2FA Technology LLC, et al.
2010 WL 1702216 (SDNY Apr. 27, 2010)
Breach of contract case involving 2FA's failure to issue a legal hold (despite
being a small company) and intentional bad-faith spoliation resulting in
prejudice; monetary sanction designed to punish bad actors directly
Merck Eprova AG v. Gnosis S.p.A. et al. 07
Civ. 5898 (SDNY Apr. 20, 2010)
Mislabeling of a nutritional agreement involving inadequate preservation
efforts (lack of litigation hold, failure to suspend automatic email deletion and
inadequate supervision of custodian search; finding of gross negligence and
monetary sanctions and additional deposition
Crown Castle USA, Inc. v. Fred A. Nudd
Corp. 2010 U.S. Dist. LEXIS 32982, (WDNY
Mar. 31, 2010)
Product liability case involving gross negligence due to a failure to monitor the
approach used to determine where and what to look for in terms of responsive
documents; failure to suspend auto-delete of emails; and failure to issue legal
hold (rejecting adverse inference due to lack of bad faith and prejudice)
Rimkus Consulting Group Inc. v. Nickie G.
Cammarata, et al., 07-cv-00405 (SDTX Feb.
19, 2010)
Non-compete and misappropriation of secrets; lack of written hold and willful
destruction of evidence by the defendants after the duty to preserve had
attached, resulting in monetary sanctions and adverse inference instruction
Pension Comm. v. Banc of America Sec.,
LLC 685 F. Supp. 2d 456 (S.D.N.Y. January
15, 2010)
Complex litigation case where several plaintiffs were found to have failed to
implement reasonable preservation efforts, including failure to issue written
legal holds and other shortcomings resulting in finding of gross negligence

Einstein v. 357 LLC, 604199/07 (N.Y. Sup.
Ct. November 4, 2009)
Construction defect; plaintiff filed motion to compel discovery and
misrepresentations; failure to implement any legal hold, make any attempt to
investigate relevant data sources, and failure to preserve (e.g., due to email
quota restrictions) deemed grossly negligent; monetary sanction and adverse
inference
Scalera v. Electrograph Sys., Inc., 2009 WL
3126637 (E.D.N.Y. Sept. 29, 2009)
In this employment discrimination case, plaintiff moved for sanctions due to
loss of allegedly relevant emails caused by failing to issue a litigation hold
notice nor take other steps to preserve ESI; despite finding negligence for such
missteps, the court denied request for an adverse inference due to lack of
proving relevance.
Swofford v. Eslinger, 671 F. Supp. 2d 1274
(M.D. Fla. Sept. 28, 2009)
In this personal injury suit, plaintiff sought sanctions for intentional destruction
of ESI; the court agreed, finding bad faith and imposed both attorney fees and
an adverse inference against the defendant.
Major Tours v. Colorel, 2009 U.S. Dist.
LEXIS 68128 (DNJ Aug. 4, 2009)
Discrimination case where plaintiffs sought production of litigation hold letters;
after concluding likelihood that spoliation had occurred due to delayed
recognition of a triggering event and 30(b)(6) testimony provided, court agreed
and ordered hold letters be produced
Pinstripe, Inc. d/b/a Acctknowledge v.
Manpower, Inc., 2009 U.S. Dist. LEXIS
66422 (ND Okla. Jul. 28, 2009)
The key takeaway from this case is the need to communicate, communicate
and do some more communication when implementing a litigation / legal
hold. A quick phone call confirming the steps being taken to implement the
litigation hold would have saved over $30,000.00 in this case.
Phillip M. Adams & Associates, L.L.C., v.
Dell, Inc. 2009 WL 910801 (D.Utah March
30, 2009)
Infringement case, moving for terminating sanctions due to spoliation;
discussion of when trigger event occurred, with reasonable anticipation being
based on multiple lawsuits arising out of the same issue (floppy disk errors)
some five years earlier when industry was "sensitized to the issue" in the case)
Synventive Molding Solutions v. Husky
Injection Molding Systems, 2009 U.S. Dist.
LEXIS 105306 (D. Vt. Mar. 13, 2009)
Patent infringement lawsuit in which the Court ultimately orders plaintiff to
implement a litigation hold as to personnel likely to possess discoverable
information. The court also orders plaintiff to file a sworn declaration,
including, among other things, a description of the “nature and extent of the
litigation hold put in place in response to this Order, including the individual
personnel affected by the hold.”
Acorn v. County of Nassau 2009 WL 605859
(E.D.N.Y. Mar 9, 2009)
Employment discrimination case where plaintiff sought actions against the
county for failure to implement a timely hold nor adequately search for ESI
(formal litigation hold issued 15 months after trigger event); finding of gross
negligence and monetary sanction (but no prejudice; therefore no adverse
inference)
Keithley v. TheHomeStore.com 2008 U.S.
Dist. LEXIS 61741 (Aug 12, 2008)
Intellectual property infringement case; plaintiff filed motion claiming
spoliation and discovery misconduct; court agreed that the “...failure to have
an adequate litigation hold in place and the failure to issue reminders to
employees regarding the duty to preserve evidence was at least grossly
negligent” and resulted in spoliation of relevant ESI; $1.4M monetary sanctions
and adverse inference

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