LITIGATION HOLD DIRECTIVES ISSUED BY COUNSEL TO CLIENTS
Generally speaking litigation hold directives issued to Clients are protected from discovery as work product or attorney-client privilege. But there are exceptions …
The Courts have held that litigation hold directives issued by counsel to their clients are protected as privileged communications or work product. Gibson v. Ford Motor Co., No. 06-1237, 2007 U.S. Dist. LEXIS 226, at *19-20 (D. Ga. Jan.4, 2007); Rambus, Inc. v. Infineon Technologies AG, 220 F.R.D. 264 (E.D. Va.2004).
With so much attention on electronically stored information (ESI) in the discovery stage of civil litigation, a requesting party often times feels compelled to request a copy of all written directives issued by an attorney to their client when it comes to implementing the litigation hold of all relevant ESI, or to establish if such directives even were issued. This approach however, has been proven to be ineffective in court.
Behind this thin veneer of inquiry however, is a significant issue that if approached from another direction will successfully get to the heart of the matter. A number of critical questions need to be addressed when formulating a strategy to get the answers to issues that are connected with electronic evidence:
1. At what precise date did the client actually implement a litigation hold on all sources of ESI?
2. What reasoning was used to identify and inventory the specific electronic systems that would be subject to the litigation hold?
3. What if any prior existing litigation hold was in effect at the time of this new imminent civil case that involved some of the same systems or ESI?
4. What specific policies and procedures were already established to implement an effective litigation hold on electronic systems and all ESI pertaining to a civil lawsuit if any?
5. What are the names of the specific individuals who are assigned with litigation hold related responsibilities within the organization?
6. What are the reporting procedures within the organization to supervise all litigation hold activities throughout the duration of a case?
7. What if any operational constraints exist in the implementation of a litigation hold situation?
8. What specific procedures are implemented with any third-parties who have access to or responsibilities to service, maintain, program or otherwise interact with systems or ESI that has been identified to be subject to a litigation hold?
While it may be important to learn whether or not a producing partys counsel provided sufficient advice to their client to implement an effective litigation hold, ultimately it will all flush out once the answers to questions like those listed above are collected. Attorneys will soon learn that a form letter to their corporate clients advising to implement generic litigation hold procedures is insufficient to safeguard the client or themselves from spoliation accusations.
At CyberControls, our team of pretrial litigation consultants work at assisting commercial litigators in identifying effective avenues of inquiry to identify areas of inadequate litigation hold practices for a requesting party as well as providing recommendations to implement a rock solid litigation hold for commercial clients to be in compliance with their preservation obligations.
CyberControls, LLC is a computer forensics and e-discovery firm that provides pretrial consultancy support and conducts searches and examinations of electronically stored information for commercial litigation matters. Contact them by calling 847-756-4890 or visiting them online at www.cybercontrols.net.
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