Best Practices in Legal Holds

1. Best Practices in Legal Holds Effectively Managing the e-Discovery Process and Associated Costs 1

2. Stages of Litigation Hold • Initiating the hold • Scoping the hold • Creating a repeatable process • Collection • Production • Documenting your process • Creating metrics 2

3. Initiating the Hold • What does “anticipation of litigation” mean? • Create workflow and assessment team • Consistency is key • Third-party discovery requests – finding the balance 3

4. Scoping the Hold • The type and size of case • Volume of custodians and ESI may drive collection decisions • Assess major types of ESI that are affected • Unstructured workstation data • E-mail • Enterprise application data • Back-up repositories • Assess custodians • Key Players • Non-Key Players 4

5. Create a Repeatable Process • Standardize your Hold Notice • Specifically identify case, subject matter and instructions to custodians • Automated deletion mechanisms • Centrally deactivate or suspend • Anticipatory collection • Hold Notice tracking and follow up • Manual tracking / periodic follow up • Automated litigation hold software 5

6. Collecting the Data • Determine preservation and collection methods to be used • Centralized preservation and collection • Keyword searching at collection point • Broad collection methods • Custodian-reliant preservation and collection schemes • Collection at inception of hold • Minimizes spoliation risk • Viable strategy for certain “key players” • Collect after document requests are received • Potential to limit collection • Potential spoliation risk 6

7. Managing Your Production • Reach agreement on specifications of production • Try to produce as much in native as possible • Decide early on how you will address privilege issues • Effect of Federal Rule of Evidence 502 • Designed in part to address privilege problems that increased due to e-discovery • Also designed to harmonize rules on privilege waiver 7

8. Managing Your Production: Rule 502 • Pre-Rule 502 Waiver Law • Requirements for Waiver • Intentional • Carelessness • Any • Scope of Waiver • Communication revealed only • Subject matter waiver • Rule 502 Waiver Law • Disclosure in federal proceeding extends to undisclosed communication only if: • Intentional • Disclosed and undisclosed communications concern same subject matter • They ought in fairness be considered together. • Inadvertent disclosure does not operate as waiver if: • Inadvertent • Took steps to prevent disclosure; and • Promptly took reasonable steps to rectify the error 8

9. Document Processes • Establish “Discovery Manual” • Defense value of showing a standard practice • Auditability of process • Need to periodically audit • Establishing process discipline improves results and accuracy • Periodically assess processes against documented industry best practices (e.g., Sedona) • Standardize hold notice guidance and documentation 9

10. Metrics: why you need them ? • Crucial to establish metrics • Provides business case for in-house technology/tools • Helps you determine whether you are getting a true value • Will allow you to budget for e-discovery in the future • What to track? • GB per month/case/division • Processing cost per month • Review rate 10

11. Questions ? 11