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Are Legal Hold Notices Immune from Discovery?

Posted by Kevin M. Colmey on Jun 8, 2016 4:08:35 PM

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.    

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Topics: risk management, litigation holds, spoliation

Litigation Holds and Spoliation Issues

Posted by Kevin M. Colmey on Apr 29, 2016 10:03:14 AM

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.

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Topics: risk management, litigation holds, spoliation, data maps

Tracking and Releasing Litigation Holds

Posted by Kevin M. Colmey on Mar 25, 2016 4:18:17 PM

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.

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Topics: risk management, legal department management, Litigation, litigation holds

10 Tips for Litigation Hold Plans

Posted by Kevin M. Colmey on Feb 29, 2016 5:21:19 PM

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. 

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Topics: risk management, legal department management, litigation holds

Data Maps and Litigation Holds

Posted by Kevin M. Colmey on Jan 30, 2016 10:16:41 AM

Data maps and litigation holds

This is the third post in our Litigation Holds Series.

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Topics: risk management, legal department management, litigation holds

10 Essentials for a Well-Drafted Litigation Hold Notice

Posted by Kevin M. Colmey on Jan 7, 2016 5:05:38 PM

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This post is the second in a our Legal Hold Practical Advice Series

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Topics: risk management, Litigation, litigation holds

2015 Year in Review: Top Five Stories for In-house Counsel

Posted by Leah Schloss on Dec 23, 2015 2:21:00 PM

In-house Counsel Year in ReviewOne of our priorities is tracking the big issues affecting in-house counsel, and since 2015 seems to be the year of the “Top __ List,” we thought it would be fun to jump on that bandwagon too. It’s helpful to understand your legal department’s goals, challenges and priorities in the context of the greater legal profession and the business world as a whole. And isn’t it also kind of fun at this stage of the year to look back at the various twists and turns we all lived through or at least thought we might have to get through? 

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Topics: risk management, in-house counsel, technology, EU Safe Harbor

Practical Tips for Litigation Holds

Posted by Kevin M. Colmey on Dec 18, 2015 10:56:21 AM

Do you know when to implement a legal hold?

Co-authored by Michael Isotti

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Topics: risk management, litigation holds

Online Retailers: Amazon Decision Allows Proprietary Product Search

Posted by Leah Schloss on Oct 28, 2015 2:44:33 PM

Our colleagues at the Trending Trademarks Blog recently posted a review of the recent decision, Multi Time Machine, Inc. v. Amazon.com, Inc.; Amazon Services, LLC, which states that Amazon does not create "initial interest confusion" by using proprietary product names as keyword terms. 

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Topics: risk management, trademarks, trademark infringement, keyword search, proprietary product search

Handling the EU’s Recent Safe Harbor Decision - Near Term Strategies

Posted by Leah Schloss on Oct 23, 2015 4:24:53 PM

Data Transfers and the EU Safe Harbor Decision

Although no one really knows what will happen next, we thought it might be useful to outline some strategies that companies are currently using to mitigate risk in light of the European Union’s recent decision to strike down the Safe Harbor provision allowing data transfers (user web histories and other personal information) between Europe and the United States. The ruling affects any company with international users that transfers advertising and other personal information between Europe and the United States. Google and Facebook are major examples of the type of company affected. Since it’s anyone’s guess when there might be a new safe harbor agreement between the U.S. and Europe, and the current new restrictions will go into effect in January, it is wise to look into some ways of coping with tougher oversight of data transfers.

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Topics: risk management, cybersecurity, data security, EU Safe Harbor

The legal landscape is changing and we're here to share our perspective

We want to help you lead your legal department both as a manager of people and as a thought leader within your company advising your executives on the myriad legal issues that present opportunities and challenges. We also understand that you may not have time to read every decision, rule change or trend that relates to your daily life in your company, and we hope that we can help keep you up to date on the important stuff. 

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