How to Fulfill Document-Preservation Obligations

In the age of email, metadata, flash drives, and cloud computing, most attorneys are acutely conscious of their duty to ensure that their clients appropriately preserve documents. An attorney should issue a written litigation hold immediately upon notice of a triggering event (e.g., potential claim) or a suit, whichever comes first. In a perfect world, the initial demand for litigation hold would contain the universe of information necessary to capture all systems and parties relevant to the claim or suit.

But the real world is not always perfect. Lawyers and clients rarely have complete information at the outset of a dispute. As such, document preservation is not a one-time process initiated at the commencement of a case or upon some other pre-litigation triggering event. It is an ongoing obligation, continuing throughout the course of the litigation. With that in mind, here are four things lawyers should do when implementing and updating a litigation hold.

Communicate. Communication is key to effective document preservation. Counsel must communicate with the client and discuss, inter alia, the who (source of potential documents), the what (documents and data the client must preserve), the when (relevant date range), the where (location of documents), and the why (crafting of explanation to be disseminated to employees).

Notably, other parties also may have pertinent information early in the case to which the attorney is not privy, particularly in regard to identifying relevant people who need to receive the litigation hold memo. In In Re Weekley Homes (2009), the Texas Supreme Court encouraged early communication among parties before promulgation of requests for electronic information. It's prudent for attorneys to speak to counsel for other parties to ferret out information pertinent to his or her client's document preservation.

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Source: law.com
By: Barbara S. Nicholas