Triggering Events:
  • Demand form opposing party is receive
  • Law suit served
  • Court issues preservation order
  • Litigation is "reasonably foreseeable"

Triage

  • Assemble a response team with at least the following:
    • one IT person
    • one attorney; and
    • one subject matter expert (e.g. HR in employment case)
  • Review relevant rules (any special requirements depending on jurisdiction?)
  • Analyze claims to determine
    • Subject matter of dispute
    • Key players and departments involved
    • Relevant time period (are potential relevant documents still being created or likely to be created?)

Scope of ESI to Preserve

  • Relevant
  • Reasonably calculated to lead to discovery of admissible evidence
  • Reasonably likely to be requested in discovery

Identify what systems/devices are most likely to contain data

  • Confirm frequency and retention of backups for those systems
  • Identify which are accessible to key players and which are not

Develop your litigation response plan

  • Designate those responsible for implementation and follow-up
  • Identify potential Fed. R. Civ. Proc. 30(b)(6) witness
  • Decide whether to suspend current retention policy (re: destruction of documents)
  • e.g. backup tapes with "key player" documents may need to be retained
  • Decide whether to establish separate servers to capture relevant data
  • Decide whether to segregate relevant electronic documents so that current users/custodians cannot alter or delete them
  • Record decision and rationale (this is crucial in defending your decisions and actions later)

Implement response plan

  • Orally notify affected persons (both inside and outside agency)
  • Issue litigation hold
  • Instructions should come from counsel
  • Identify point person to answer questions
  • Describe claims with enough specificity so that individuals will know how to respond
  • Describe categories of records to be preserved/nature of materials likely to be relevant
  • Provide dates of preservation if possible
  • You could have separate holds for IT personnel (e.g. save all backup tapes) versus key personnel in litigation.
  • When necessary, plan for segregation of server space to capture data
  • Monitor to ensure litigation hold has commenced
  • Seek certification that backups and other forms of relevant data are being retained

Refine response plan

  • Survey key players (what hardware do they have etc., anything that response team didn't know about)
  • Through analysis of claims and in consultation with outside counsel first (if any) and opposing counsel (Rule 26(f) conference) address the following production issues:
  • Emails in electronic form?
  • Produce or save voicemails?
  • Mirror any hard drives?
  • Produce all versions of documents (paper and electronic, MS Word and Word Perfect)?
  • Extract metadata?
  • Produce calendars?
  • Estimate costs

Follow up

  • Issue periodic reminders/refreshers to key players
  • Remind departing employees about any continuing obligations
  • Notify all persons as needed when litigation hold is lifted.

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