Do you have any active litigation holds? If so, when is the last time you reviewed them?
If your company is like many organizations, once a legal hold is set in motion, it becomes yesterday’s news…and is promptly forgotten about in favor of more pressing matters. After all, at its essence, a litigation hold is fairly straightforward: it puts custodians and IT personnel on notice regarding the types of data they must save. However, the simplicity of the concept belies the moving parts that are critical to success in this discovery process.
A recent opinion from the Southern District of Illinois in In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, No. 3:12-md-02385-DRH-SCW, 2013 U.S. Dist. LEXIS 173674 (S.D. Ill. Dec. 9, 2013), illustrates just how important getting the litigation hold process right can be. In this ongoing litigation over the drug Pradaxa, the court found a pharmaceutical company’s series of bad faith preservation failures warranted a sanction of nearly $1 million: (1) the company omitted records from a key custodian; (2) failed to timely issue proper litigation holds for all sales representatives; (3) did not instruct custodians to preserve text messages or disable their automatic deletion; and (4) failed to share document passwords with a vendor collecting documents, resulting in significant delays in document identification and production.
E-discovery software platforms that include litigation hold features can be a lifesaver for companies struggling to manage preservation duties across multiple matters. They offer a number of features, such as using templates to streamline the process of setting up consistent litigation holds, sending automatic reminders to custodians, and reporting on the status of holds. However, they may also encourage users to go on autopilot.
More than passive participation in the process is required. As discovery continues, active litigation hold management is key, which organizations can demonstrate through the following steps:
Revisit the hold notice regularly — perhaps every time a reminder is sent to custodians — to ensure it still covers all types of potentially responsive evidence and the relevant personnel.
Reassess the litigation hold whenever you refine the scope of discovery with opposing counsel or the court to ensure it does not need to be expanded or contracted in response.
Release any information that is no longer pertinent to the claims and fully document the decision-making process.
Litigation hold software can markedly improve the consistency and defensibility of an organization’s actions. However, human oversight over the preservation process is still required, and some level of ongoing engagement and attention to the hold will help assure compliance with corporate eDiscovery obligations.