Counsel to Counsel - January 2008 - (Page 3) DOCUMENT RETENTION About Litigation Holds The new Federal Rules of Civil Procedure, which took effect in December 2006, have clarified the roles—and increasing responsibilities—of corporations involved with e-discovery. While in-house counsel bear a great deal of that responsibility, an organization’s employees also play an important part in properly categorizing and preserving relevant information. Planning ahead for document retention and litigation holds are critical to the process, as is educating employees so they can manage their own data properly. Illustrations by Holly Haugen John F. Mariani Shareholder Gunster, Yoakley & Stewart, P.A. jmariani@gunster.com Peer Review Rated Do not rely too heavily on the “safe harbor” provisions of Federal Rules of Civil Procedure 37(f). To avoid sanctions for spoliation of evidence, companies should thoroughly educate and instruct employees on document retention and litigation holds. Focus especially with your IT directors, records managers and others who have potentially discoverable information as soon as a lawsuit is expected. Meet with them immediately; issue a written litigation hold order immediately; confirm suspension of document destruction policies immediately; and follow up to ensure compliance with the litigation hold. Lori B. Wiese Partner Powers & Frost, LLP lwiese@powersfrost.com Peer Review Rated Companies should have a centralized plan in place before the need for document retention or litigation holds arises. That information should be identified and cataloged. An effective plan will include a custodian list, hardware and software inventory, filtering and collection protocol with a detailed review methodology, production time line and a point person or discovery response team. It frees in-house counsel and other employees from having to think about it on a moment-by-moment basis. It’s just like any other plan—if something happens, you will be miles ahead than if you weren’t prepared. José R. González-Magaz Partner Steptoe & Johnson LLP jrgonzalez@steptoe.com Companies should establish a protocol for document retention announcement and enforcement, including technical instructions to employees to prevent the deletion of electronically stored information (e.g., email, word processing documents, presentations, spreadsheets, data reports) kept in any medium (e.g., servers, laptops, BlackBerry devices). Employees should be informed that failure to follow document-hold directives can sometimes result in discovery sanctions, civil liability or even criminal penalties. Employees should check with in-house counsel prior to any action that may result in the destruction of electronic files potentially subject to discovery. For more information about these lawyers and their firms, please visit www.martindale.com. martindale.com/c2c JANUARY 2008 03 http://www.martindale.com http://www.martindale.com/c2c
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