Why do lawyers write “Privileged & Confidential” at the top of a legal hold notice? Most courts have decided that legal hold notices are immune from discovery, but not because of the header or title. What generally protects a legal hold notice from discovery is the substantive language used in the notice and the process by which the notice was communicated. A proper notice should be a confidential communication from an attorney (outside counsel or corporate counsel) to only those corporate employees who need to know about it, and it should specifically instruct those employees to preserve information in anticipation of litigation. As more fully explained below, a poorly drafted or poorly communicated legal hold notice may be discoverable – with or without a “Privileged & Confidential” header.
On May 18, 2016, the U.S. Department of Labor released a Final Rule updating the overtime regulations that revises the salary test for the "white collar" exemptions to the Fair Labor Standards Act ("FLSA"). The Final Rule will go into effect on December 1, 2016.
When the need arises, a litigation hold should be implemented quickly and effectively to avoid the inadvertent destruction or overwriting of potentially responsive data. The time to implement a litigation hold may be when it can be reasonably anticipated that the company may be sued or receive a subpoena in a case where such data may be relevant. Failure to implement a litigation hold may lead to spoliation issues and sanctions for the failure to preserve evidence.
If you do not follow the Medium Blog, "Rethink the Practice," do yourself a favor and start today. This post on the potential role of luck in the outcome of high-value legal matters is a thought-provoking read. To summarize, the article explores the concept of "the paradox of skill," which suggests that as skill increases, luck plays a more essential role. For example, in baseball, as more batters and pitchers hone their skills, luck increasingly becomes a determinent in a hitter's batting average. Read the full post:
It's tax filing season, but did you know that it is also phishing season? Tax phishing scams abound at this time of year, and each year they grow more sophisticated. Historically, these scams were aimed at individuals, but there are now scams involving companies as well.
If I could be you
And you could be me
For just one hour
If we could find a way
To get inside
Each other's mind . . .
-Joe South, "Walk a Mile in My Shoes"
If I were to guess, your legal department is managed by Boomers and Gen-Xers, but many of the lawyers in your group are millennials. The law firm world is no different, although I believe we are mostly boomer-led. Have you caught yourself telling your millennial direct reports, "When I was your age, we never (or always) . . . "? (P.S. Are you sounding more and more like your parents every day?) Or maybe you love working with millennials, but there are moments when you clearly have trouble seeing the world from their perspective.
Millennials, do you feel that your boss places too much importance on face-time in the office? Are you having trouble getting regular feedback on your performance?
On the surface, these may seem like first-world problems. Don't marketing people invent these generational labels anyway? Isn't it all just a matter of people doing good work and trying to get along with one another? Well, yes . . . and no. No one wants to work on a dysfunctional team or even an unhappy one. Also, retention is important because recruiting and training good people is very expensive. As we've written here before, our feelings about our work and the people we work with impact our productivity, and negative interactions can sap our sense of mission and motivation. Perhaps above all else, we all learn a great deal from people with different perspectives.
We have all experienced profound changes in our working lives in the past 20 years, primarily due to technology and globalization, but I would wager that the legal profession is one of the more extreme examples of change. Take, for instance, the change in the sheer number of lawyers in the country in 1980, which was 500,000, and compare that to today's number: 1,000,000. Another powerful work trend is our 21st century 24/7, always connected mentality. Lawyers have always worked long hours, and technology has exacerbated this tendancy. Many lawyers expect their teams to be connected to their email and cell phones even on vacation. Add to that, the millennial perspective that maybe work isn't everything, and you have a recipe for conflict within inter-generational teams of lawyers. There are so many other differences between 1980 lawyering and today: the high cost of law school, the vastly different set of job options after law school, diminishing law firm partnership possibilities. This is a long, long list, but it wouldn't hurt for us to try on those other shoes for size.
Notifying potential custodians and implementing a litigation hold plan are both very important steps at the very beginning of a lawsuit. But often neglected is what to do with the preserved information once the need to keep it no longer exists. When the obligation to preserve is gone, companies should release the hold, track it for later analysis, and return to normal record keeping practices.
In January, we hosted an event with the Northeast Chapter of the Association of Corporate Counsel (ACC) on cyber security. Matt Field, a cyber insurance expert, participated on the panel, and we are thrilled to offer you a Q&A with Matt on the basics of cyber insurance. Matt is Woodruff-Sawyer's New England practice leader. He is expert in complex risk management and insurance areas, including cyber, D&O, clinical trials and reps and warranties insurance. He works with companies ranging from start-ups to large publicly trade global entities. Find out more about Matt here.
A “litigation hold plan” guides an organization in carrying out its evidence preservation obligations. Many factors come into play when the need to preserve records is triggered, and each organization has unique systems, policies, and practices. There is no one-size-fits-all plan, but there are important considerations that should be addressed.
I haven't been able to stop talking about an article from this Sunday's New York Times, "What Google Learned From Its Quest to Build the Perfect Team." We in the legal profession are generally not as adept at working in teams as the Googles of the world, so I thought this article might help CLOs and other in-house legal managers (in addition to law firms!).