Litigation Holds: Past, Present, and Future Directions

Electronically Stored Information (ESI) first became a serious litigation issue in the late 1990s, and the first attempts to determine best practices did not occur until the early 2000s. As best practices developed, the litigation hold to prevent routine destruction of documents and to preserve documents relevant to litigation came into existence. The duty to preserve ESI is triggered when litigation is reasonably anticipated. All information that relates to potential litigation must be preserved from the time it becomes reasonably apparent that litigation is possible until the expiration of the statute of limitations. If steps are not taken to properly collect, preserve, and produce such information for the discovery phase of litigation, the fear is that justice may be perverted. In addition electronically stored information destroyed negligently or intentionally may well be lost forever and result in the litigant being sanctioned. For the first seven years of the new e-discovery rules, litigants who failed to preserve data received severe sanctions for spoliation of evidence. Recent cases and proposed new rules have reversed the decade-long trend of stringent standards requiring litigation holds leaving the state of the law in flux in spite of the fact that accepted best practices do recommend high standards for litigation holds. This paper reviews this conflict in the law and offers recommendations for future directions

Qualcomm v. Broadcom: Implications for Electronic Discovery

Electronic discovery has been the source of difficult challenges for courts, lawyers, and litigants from the beginning. The methods, document formats, and scope of electronic discovery have all contributed to the difficulties encountered. The seminal case in the United States that underscores the nature of the difficulties and challenges facing lawyers and courts in electronic discovery is Qualcomm v. Broadcom. While the case has been cited as an example of the ethical issues facing lawyers who do not follow the rules of discovery, the lessons go well beyond ethical issues. All major common law countries, including Australia, New Zealand, United Kingdom, Canada, South Africa, and the United States have recently updated their rules of civil procedure regarding the electronic discovery process in order to facilitate the electronic discovery process. The authors offer five key lessons to be drawn from this case including the importance of efficiently managing electronic discovery, the importance of the meet-and-confer discovery conference, the importance of retaining an electronic discovery expert, the importance of being proactive in the discovery process, and recognizing the limitations of relying entirely on key word searches

Zubulake: The Catalyst for Change in eDiscovery

Common law countries have been struggling with electronic data in regard to their discovery rules from the first digital document. All major common law countries, including Australia, New Zealand, Australia, United Kingdom, Canada, South Africa and the United States have recently changed their rules of discovery in an attempt to make sense of all this data and determine what, when and how data should be disclosed by parties in litigation. Case law in these countries has been defining the responsibilities of potential parties and attorneys to prepare for litigation that might happen. The case that was the catalyst of change was the 2003 United States case Zubulake v. UBS Warburg, LLC. Prior to this case judges and attorneys were trying to determine how to deal with electronic data that was becoming more voluminous. In this case, the court made a series of five pretrial orders concerning disputes over electronic discovery issues. These orders included defining accessible and inaccessible data, analyzing cost-shifting, and litigants’ duties to preserve electronic documents and consequences for failure to have an appropriate retention and deletion policy. This paper reviews the key aspects of the Zubulake case and examines the impact of the case on corporate record retention policies. This case was an important harbinger regarding how the discovery rules needed to be changed or redefined to accommodate the electronic data world