Preservation Resources

Presenting the business case for legal hold and discovery workflow software to IT, business and finance execs is more productive when framed in familiar business — rather than legal — terms.

Often, the legal department will consider only its processes for legal holds as it evaluates legal hold software. When legal holds is viewed as a legal department issue, it is easy to lose sight of the fact that the data on hold is everywhere except the legal department! The IT department is a key stakeholder and legal is highly dependent on IT's ability to manage data on hold and perform collections, yet they are too often not at the table when criteria for legal hold software are developed. As partners in the process and as the stewards of data actually subject to legal holds, IT requirements are important considerations in any legal hold software purchase.

Read the 5 Considerations for Every IT Department, find lessons learned from the CGOC community, and get a convenient requirements checklist.

By Thomas M. Lahiff, Director, PricewaterhouseCoopers and Deidre Paknad, President & CEO, PSS Systems

This white paper from two recognized experts in ediscovery distills Judge Scheindlin's 86-page opinion into a practical check list for corporate counsel.

Ralph Shalom, Assistant General Counsel, First Data Corporation

Cost is the central consideration in the “fight or settle” analysis but good forecasts are rarely available so resolution decisions are made later or negotiation opportunities are lost. This session focuses on decision making and compelling cost shifting arguments to reduce litigation costs.

Tom Lahiff, Director, PricewaterhouseCoopers

Cost is the central consideration in the “fight or settle” analysis but good forecasts are rarely available so resolution decisions are made later or negotiation opportunities are lost. This session focuses on decision making and compelling cost shifting arguments to reduce litigation costs.

Paige Cole, Legal Specialist, The Williams Companies

The root cause of high discovery costs is too much data, however the only way to defensibly and reliable dispose of data is to ensure that Legal, IT, and Records are aligned. This case study will provide best practices and processes for defensibly disposing of data.

Alexandra Buck, Senior Counsel and Director of eDiscovery and Retention Management, Abbott Laboratories

A strong partnership and robust process across Legal and IT is critical to preserve and collect relevant information and to dispose of expired data. The high volume of information and its distribution can make IT the Achilles Heel. This case study will cover building strong partnerships and strong processes that link Legal and IT and enable better legal governance of information.

Thomas Lahiff, Director, Pricewaterhouse Coopers

Using 100% retention as a legal holds solution is perhaps the most expensive approach to preservation; as the data builds up, it may not mitigate as much risk as expected and it significantly increases operating and discovery costs. Very often, litigation executives disregard retention schedules in favor of holding everything because they worry about spoliation or doubt the integrity of the retention schedule itself. Legally-based retention schedules combined with a good legal holds process are possible and can be used to effectively defend against claims of spoliation. This session will look at the processes to develop legally-sound retention and preservation programs for the best offense and best defense.

Deidre Paknad, President & CEO, PSS Systems; Founder, CGOC

Today every company manages legal holds to mitigate risk, but how they do so has a huge impact on the corporate bottom line. With tough economic conditions, the choices the Legal department makes for how and what to preserve and retain are critical. This session will look at retention and preservation practices and their relative cost footprints and offer ways to take a "greener" approach.

Jay Brudz, Senior Corporate Counsel, GE

Implementing good retention practices and information hygiene is often met with resistance from business groups and even the legal department. By calculating the true loaded cost of information to the corporation -- including the cost to manage, discover and litigate it -- companies can make much better cost/benefit decisions. Moreover, transparently allocating the real cost of information can reduce unnecessary discovery budget surprises improve allocation of discovery costs.

Dan Kulakofsky, Managing Counsel, eDiscovery, Travelers

Good legal holds practices are a pre-requisite for improvements in retention practices and data management efficiency. This session will highlight how to define a new process, galvanize a large or distributed legal team to change old habits, gain management and staff support, and roll out a new program.

Research conducted by CGOC and Huron | Sponsored by PSS Systems. This first-of-a-kind survey focuses on corporate practices for preserving information in litigation, identifying custodians of data, communicating legal holds, interviewing custodians, and collecting potentially relevant data.

Managing legal holds has become increasingly complex.  For companies in high tech, global or data-intensive environments, it's particularly difficult to track the people and systems that fall under legal hold.  Relying on permanent retention of all data just shifts the enormous legal burden to IT without commensurate controls and transparency.  This half day CGOC event focused specifically on this challenge.

The challenges of preservation now go beyond sending and managing hold notices. This article provides the benchmarks for a successful and defensible preservation process.

Most companies have substantially improved their legal holds process and procedures over the past year and, as they did so, have found it difficult to sustain a good process with the volume of litigation. The level of manual effort and the dizzying array of hold details quickly swamp the staff. As a result, many choose to purchase software to improve process reliability and reduce the burden. While procuring legal services is routine for litigation executives, choosing software for legal processes may be unfamiliar territory. Navigating the internal budget and project process is complicated and without prior experience buying enterprise software, it may not be obvious what to look for in the diligence process on product choice.

Tom Lahiff, Director, PricewaterhouseCoopers, Former Assistant General Counsel, Citigroup

Determining when litigation is reasonably anticipated continues to be a challenge in large, complex companies. While fact specific, there are a number of circumstances that are consistent triggers for legal holds. Because your decision making will be scrutinized through the lens of hindsight, establishing the basis for you policies and decision making are essential to defending the choices made. Tom will address legal hold triggers and discuss the consequences of failure to initiate holds early or broadly enough. This session will look at relevant cases, decision making challenges, and policy documentation issues.

Dan Kulakofsky, Managing Counsel and Director of eDiscovery, Travelers

For the companies that are just beginning their legal holds process, tips from someone that has already gone through it are invaluable. This case study provides the lessons learned as Travelers implemented their preservation program as well as offers guidance and “what we would have done different” advice.

Kathy Harris, Managing Director, Discovery and Regulatory Response Team, Merrill Lynch

An analysis of the trajectory of strategic change over the last 24 months, process and practice accomplishments and work yet to be done. This case study includes a thoughtful review of typical organizational and operational barriers and the opportunities in retention and discovery that the future holds.

Tom Lahiff, former AGC at Citigroup, looks at two recent decisions: Google Inc. v. American Blind & Wallpaper Factory Inc., and Cache la Poudre Feeds, LLC. v. Land O’Lakes, Inc. to explain how demand letters can trigger the duty to preserve information.

Hold notices and confirmations of compliance are arguably the lowest-cost method of preserving information and demonstrating good faith. Yet, as recently as a year ago, many companies didn't issue them at all or followed a haphazard approach that differed with every attorney and in every matter. In the wake of Zubulake and the run up to the effective date for the revisions to the Federal Rules, the vast majority of Fortune 500 companies are racing to improve and institutionalize legal holds processes. There are several core process issues and most of them find their root in the tools and techniques used to institutionalize the process.

As the revisions to the Federal Rules take effect December 1, many companies are looking at their processes to determine risks and gaps and to address them. This can be a daunting challenge and certainly the hurdles the Rules present are significant. It's made more daunting by confusion on the terms "retention" and "preservation". Both retention and preservation arise from law, but they have different meanings, disciplines, and implications.

Failure to demonstrate a robust legal holds process found “at least grossly negligent,” grounds for adverse inference instruction, spoliation sanction, and attorneys’ fees and costs award. Judge Andrew J. Peck of the Southern District of New York found in In re NTL, Inc. Securities Litigation. Key take-aways from the case are provided.

Industry experts Ashley Watson (Attenex Corporation), Deidre Paknad (PSS Systems) and Mark McCarty and Leigh Rhoads (Alston & Bird LLP) outline successful corporate strategies for litigation holds and preservation that are in line with the Zubulake and Morgan Stanley opinions.

Using three sources of guidance on legal holds obligations and expectations (Zubulake V, the Morgan Stanly decision, and the FRCP), Deidre explains how to develop and enhance the legal hold process with transparency and repeatability.