Legal Hold Guidelines for every Legal Department

There is no question that there is mass confusion and uncertainty as to what one’s duty is with regard to legal holds in litigation. Fortunately, the Sedona Conference in its Fall 2010 Journal, published the Commentary on Legal Holds: The Trigger & The Process, in The Sedona Conference Journal® . Within the commentary, 11 guidelines were suggested to help with complying with the duty to preserve evidence.

I don’t need to go through the litany of recent cases to point out that not complying with the duty to preserve could lead to significant sanctions against the offending party, as well as personal sanctions against the lawyer and/or law firm representing the sanctioned party. So lawyers, who wish to avoid such sanctions, may want to pay close attention and try to follow the guidelines suggested. Although, the Conference states, that the Guidelines “are not intended and should not be used as an all-encompassing ‘checklist’ or set of rules that are followed mechanically”, keep in mind that courts struggling with complex eDiscovery issues often look to The Sedona Conference for guidance. See e.g. Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Sec., 255 F.R.D. 350, 355 (S.D.N.Y. 2008) (“Courts have found the Sedona Principles instructive with respect to electronic discovery issues.”). See also Romero v. Allstate Ins.Co., 2010 WL 4138693 (E.D. Pa., CA No. 01-3894, Oct. 21, 2010) (numerous citations to the Sedona Principles and Commentaries).

Each guideline is fairly succinct, but nothing is ever short enough for busy litigators to read, so here is the CliffsNotes® version:

Guideline 1
“Anticipation of Litigation” = When an organization is on notice of a credible probability (not possibility) that it will become involved in litigation or seriously contemplates or takes action to commence litigation.

Guideline 2
Adopt and FOLLOW your policy on preservation.
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Guideline 3
Appoint a decision maker to whom any probable threat of litigation is reported.

Guideline 4
Reasonable anticipation of litigation is based on good faith and reasonable (GF&R) evaluation of relevant facts and circumstances.

Guideline 5
Evaluating preservation decisions should be based on GF&R of the decisions undertaken at the time they are made.

Guideline 6
Preserve as soon as practicable using proportionality. Notify the people who are likely to have relevant information to preserve it.

Guideline 7
To determine scope of preservation, consider:
a) Nature of the issues
b) Accessibility of the information
c) Probative value of the information
d) Burden and costs of the preservation effort

Guideline 8
For an effective legal hold notice, identify the custodians most likely to have relevant information, and ensure that the notice:
a) Communicates in an effective way, keeping in mind its audience
b) Is in an appropriate form, which may be written
c) Tells custodians how to preserve
d) Is periodically reviewed and, when needed, reissued
e) Addresses features of relevant information systems that may prevent retention of potentially discoverable information.

Guideline 9
Document the legal hold policy, and, when appropriate, the process of implementing the hold in a specific case.

Guideline 10
Regularly monitor compliance with a legal hold.

Guideline 11
Always include provisions for releasing the hold when the matter is over so that the organization can continue its normal records retention schedule.

The guidelines are essentially a way for a party to show “reasonableness and good faith” in their preservation efforts in an attempt to avoid sanctions. Now that they are memorialized, much of what is included in the guidelines may seem like common sense. However, the number of cases that roll out of the courts, demonstrating one party’s failure to implement a good legal hold, proves the need for their review by every organizations legal department.

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