Each September for the last four years, I’ve had the pleasure to participate in a splendid e-discovery conference in Portland, Oregon called PREX, so-called because the whole event is devoted to PReservation EXcellence. It’s sponsored by Zapproved, but unlike other developer events, it’s less a celebration of self than a product-neutral effort to promote better practices in mounting a defensible enterprise legal hold. A bevy of prominent judges and thought leaders turn out to speak; but, the real star of PREX is Portland itself, resplendent in those precious, late-Summer weeks when one can count on abundant sunshine. If you’re looking for fine, fun education in excellent company, pencil PREX in for September 13-14, 2017. There’s no better time to visit Oregon, and no better event on the topic.
One of the panels this year was “The Perfect Preservation Notice.” I suspect I was asked to join because I’d written a widely-circulated paper many years ago called, “The Perfect Preservation Letter,” wherein I explored the desirable elements of the letter one should send to an opponent affording notice of ESI sought preserved in anticipation of electronic discovery. My title was tongue-in-cheek, as there’s no such thing as a perfect “form” preservation letter, a point I made as counterpoint to composer Steve Goodman’s claim to have written the perfect country and western song by virtue of the lyric,
“I was drunk the day my mom got out of prison
And I went to pick’er up in the rain.
But before I could get to the station in my pickup truck,
She got runned over by a damned ol’ train.”
Song: “You Never Even Called Me by My Name“
My message was that, though perfect isn’t the standard, neither is lousy. We can approach perfect by a modicum of thought and incorporating a few essential elements.
The inapparent distinction between a preservation letter and a preservation notice is that the latter is an internal communication better termed a legal hold directive. You send a preservation letter to the other side. The preservation notice is what a party furnishes to its own principals, employees, agents, contractors and anyone else aligned with the party giving the notice and obliged to preserve information in anticipation or initiation of litigation. Clearly, we must find better terminology to distinguish the two than just “letter” and “notice.”
To get the ball rolling for PREX, I drafted a list of ten elements I thought were essential components of whatever communication aspires to call itself the “perfect” preservation notice. These were:
Ten Elements of a “Perfect” Legal Hold Notice
- Communicated through an effective channel
- Issued by person(s) with clout
- Sent to all necessary custodians
- Communicates gravity and accountability
- Supplies context re: claim or litigation
- Offers clear, practical guidance re: actions and deadlines
- Sensibly scopes sources and forms
- Identifies mechanism and contact for questions
- Incorporates acknowledgement, follow up and refresh
Exhaustive? Probably not. Perfect? Surely not. But, a legal hold directive that incorporates all of these elements is virtually assured of withstanding scrutiny; and one that materially lacks these elements is insufficient and may prove in indefensible when challenged.
Here are some other rules of thumb to consider when framing preservation notices, (excavated from a column I wrote in May 2010):
It’s a lawyer’s nature to distill case law to black letter propositions and do something: develop a checklist, draft a form or tweak discovery boilerplate. Modern lawyering is programmatic; necessarily so when non-traditional billing arrangements or bean counting clients demand economies. Thinking is a liability when clients push back on billable hours. Thus, bespoke judgment specific to a matter devolves into boilerplate so broad and meaningless as to serve no purpose but to enable the lawyer to say, “I told you so,” when something that should have been preserved is lost.
How, then, can we insure that the legal hold notice doesn’t become just another formulaic, omnibus notice–so general as to confuse and so broad as to paralyze?
Realistically, the use of forms is too ingrained to expect bespoke lawyering. But, we can tweak our reliance on forms to avoid the worst abuses and generate something better that serves both lawyer and client. I’m not talking about “best practices” (I hate that term). More like, “not awful practices.” If you simply must use forms, here are some bespoke touches (i.e., better practices) to consider:
Ask Why, Not Why Not: Lawyers don’t eliminate risk, they manage it. Over-preservation saddles your client with real and immediate costs that must be weighed against the potential for responsive information being lost. Your hold notice goes too far when it compels a client to “preserve everything.” Overpreservation grounded on irrational fear of sanctions is itself a “sanction,” one that’s immediate and self-inflicted.
Accordingly, you are not competent to set the scope of a legal hold without comprehending your client’s business operations and information technologies. You should be able to articulate particularized relevance for any any source of ESI you instruct be preserved; that is, you should be able to say why it’s on hold, not simply shrug, “why not?” Do your homework, and if you are outside counsel, insure the client understands that it’s an essential expenditure of your billable time to follow the evidence and learn where and how it lives.
Get Real: It’s easy to direct clients to segregate responsive matter, but the work could take them hours or days–boring days–and that’s assuming they have adequate search tools and the requisite skill to use them correctly and properly document their efforts. Some clients won’t be diligent. Some will be tempted to euthanize compromising material.
The focus on Hillary Clinton’s deleted e-mail may manifest in some as a sense of entitlement to clean up their messaging, even when directed otherwise. Naturally, you’ll tell them not to deep-six evidence; but, competent counsel anticipates real human behavior. Custodial-directed holds are almost always required but rarely sufficient by themselves.
Focus on the fragile first: The latest amendment to Federal Rule of Civil Procedure 37(f) makes clear that you can’t get in trouble for a botched legal hold if the electronically stored information required to be held doesn’t disappear. Fortunately, ESI is tenacious; viz., there’s little chance the company’s payables or receivables will go to digital heaven. The worst abuses are wedded to dumb mistakes involving e-mail, texts and re-tasked or discarded machines. Manage these risks first.
Key custodians must receive e-mail and messaging hold notices, and IT and HR must get machine hold notices. Is it really so hard to put stickers on implicated devices saying, “SUBJECT TO LITIGATION HOLD: DO NOT REIMAGE OR DISCARD?” It’s low tech, low cost and fairly idiot proof. Deciding whether to pull backup tapes from rotation entails a unique risk-reward assessment in every case, as does deciding whether it’s safe to rely on custodians to segregate and preserve ESI. Live by these words: “Trust everybody, but cut the cards.” If there’s a technology in place like journaling that serves as a backstop against sloth, sloppiness and spoliation, a supervised custodial preservation may be fine; but a custodial hold alone has often proven a regrettable decision.
Forms Follow Function: Consider the IT and business units, then tailor your forms to their functions. I can’t emphasize this enough! What’s the point in directing a salesperson to preserve backup tapes? That’s an IT function. Why ask IT to preserve material about a certain subject or deal? IT doesn’t deal with content. Couch preservation directives in the terms and roles each recipient understands. Design a form for each constituency instead of trying to cram it all into one monstrous directive every recipient ignores as meant for someone else.
Get Personal: For the most important “key” custodians, add a specific, personal instruction to each form notice–something that demonstrates you’ve thought about each custodian’s unique role, i.e., “Jane, you were the comptroller when these deals went through, so I trust you have electronic spreadsheets and accounting data pertaining to them, as well as checks and statements.” Personalization forces you to think about the witnesses and evidence, and personalized requests prompt diligent responses.
Don’t just dismiss this as too time-consuming. If you have so many key custodians implicated that you can’t take a few moments to consider what you want each to do and why, you’re spread too thin.
Don’t Sound Like a Lawyer: An effective legal hold prompts action. It tells people what they must do, how to get it done and sets a deadline. If it’s a continuing hold duty, make sure everyone understands that. Get to the point in the first paragraph. Gear your detail and language to a 12-year-old. Give relevant examples of sources to be explored and material to be preserved.
There’s no perfect preservation letter or notice, not even if you work in trucks, momma, prison and trains like Steve Goodman. But, you can get closer to perfect when you track the ten elements above.
U.S. readers: Please remember to vote. Whatever your views, can’t we agree this is an important time to weigh in and cast our ballots?