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

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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 11 Questions ?