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.
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.
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.
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.
This is the third post in our Litigation Holds Series.
This post is the second in a our Legal Hold Practical Advice Series.
One 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?
Co-authored by Michael Isotti
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.
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.