By Scott Giordano, Esq., Corporate Technology Counsel, Exterro
Following is a guest blog from Exterro’s Corporate Technology Counsel Scott Giordano who recently presented on a case study and participated in eDJ Group’s Legal Hold Boot Camp, held last week in Dallas on April 18.
An Emphasis on Legal Hold Principles
Nearly a decade after Judge Shira Schindlin’s landmark ruling in Zubulake, properly establishing, maintaining and releasing legal holds remains elusive for many organizations. This may stem from the lack of any requirement in the Federal Rules of Civil Procedure (FRCP) with respect to holds or unclear guidance from the courts beyond establishing a hold when litigation is “reasonably likely” or “reasonably anticipated.”
With that backdrop, eDJ Group’s Legal Hold Boot Camp, held last week in Dallas last week and sponsored by Exterro, addressed this issue head on. Three expertly-led sessions (two by eDJ Group analyst and one by , a partner at ) provided attendees with need-to-know best practices for developing and managing legal holds no matter what the size of the organization. Attendees included general counsel, litigation professionals, paralegals and support staff from both corporations and law firms.
The Sessions (or Modules)
Topic Module #1: Legal Hold – Laying the Foundation. This session addressed the components of a legal hold in which attendees broke out into groups and listed the “must-have” components of proper legal hold. I was suitably impressed by the diversity of answers.
Topic Module #2: Conducting a Gap Assessment. In this segment, legal hold scenarios were presented along with how three types of organizations should respond to each scenario: (1) a small software startup with 100 employees, (2) a domestic mid-size company with a modest legal department, and (3) a 10,000+ employee multi-national with operations in the EU. Throughout the session, the biggest challenges seemed to lie with the startup, which was just large enough to get involved in serious IP disputes but lacked in internal discipline to protect documents from being destroyed. The multi-national organization also faced owing to the risk of sanctions for violating the EU Data Privacy Directive.
Topic Module #3: Ethical Issues in Legal Hold. In the last session of the day, attendees discussed the role of legal ethics and the relation to legal holds. Featured case law was reviewed, along with great conversation analyzing the mistakes and lessons learned from each case.
My Personal Take
The state of legal hold practice, based on the participation of the attendees at this event and the results of an eDJ Group’s recent legal hold survey, is that the legal profession still has a long way to go to master the principles of legal hold. It seems that many organizations are relying on “home grown” solutions, or even just spreadsheets and email. Evidently, the United States Courts' Advisory Committee on Civil Rules doesn’t see this as a problem. They recently voted to send proposed e-discovery-centric amendments to the FRCP to its Standing Committee on Rules of Practice and Procedure, none of which address legal holds. It seems that we, as legal professionals, are on our own when it comes to advancing the state of the art in terms of trigger events and hold management. Overall, the event was excellent and I look forward to attending in this series.