Litigation Holds, Defending Spoliation Motions, Mitigating Penalties, and Preparing for FRCP 37(e)

Recording of a 90-minute CLE webinar with Q&A


Conducted on Tuesday, October 7, 2014

Recorded event now available

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Program Materials

This CLE webinar will address best practices for document and ESI preservation, including issuing and overseeing the implementation of litigation holds with an eye towards avoiding spoliation allegations down the road. Our esteemed panelists will cover a number of currently trending topics including the substance and mechanics of implementing effective litigation holds; maintenance of adequate preservation efforts; strategies and arguments to defend against spoliation allegations and limit potentially severe consequences; and the proposed FRCP Rule 37(e).

Description

Spoliation is a word that litigators hope to never hear uttered by an opposing party. The consequences of a spoliation finding can range from monetary sanctions, evidence exclusion, adverse inference jury instructions, default judgments and in rare cases, criminal penalties. A finding of spoliation—which often stems first from deficiencies related to issuing and monitoring litigation holds—can cause a party to lose what may otherwise be a winning lawsuit for reasons having nothing to do with the merits of the case.

The inherent complexities involved with preservation efforts and the requisite degree of attorney oversight—specifically with respect to ESI—have further highlighted the critical need for counsel to remain aware of their legal duties. One of the most important developments in this area involves the proposed FRCP Rule 37(e), which may ultimately rewrite the playbook on treatment of ESI spoliation.

In-house and outside counsel are responsible for ensuring compliance with preservation and collection requirements. Lawyers must effectively create, implement, revise as appropriate, and ultimately lift, litigation holds. Accordingly, robust underlying policies are essential to avoid missteps. Counsel are best suited to position themselves to overcome spoliation allegations by having institutional guidelines that comport with best practices and ongoing legal obligations. In the worst case scenario, counsel must be prepared to defend those guidelines—as well as specific practices in varying contexts—if faced with spoliation allegations.

Listen as our authoritative panel reviews the most effective hold techniques that account for, among other things, ESI and attorney-client and work product considerations. The panel will then discuss strategies for overcoming spoliation allegations, mitigation of penalties and the potential impact of proposed FRCP Rule 37(e), including the emergence of an ESI preservation safe harbor.

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Outline

  1. Preservation triggers and implementing hold notices
    1. Retention policies generally: mitigating risk without over-preserving
    2. Litigation hold notices – creation, implementation and oversight
      1. What triggers the need for a litigation hold
      2. What should be included in a litigation hold and who should receive it
      3. Oversight and ensuring continued employee awareness after implementation
    3. The inverted triangle of narrowing scope: Preservation – Collection – Production
      1. Avoids potential spoliation claims down the road
      2. Safeguards attorney-client and work product privilege concerns
      3. Backup tapes, metadata and other targets of potential spoliation claims
  2. Defending spoliation allegations
    1. Did a duty to preserve exist?
    2. Can the party alleging spoliation prove relevance?
    3. Can the moving party show a prejudicial effect?
    4. Using forensic and other experts to combat spoliation allegations
    5. Avoiding/Mitigating potentially severe consequences
      1. Monetary sanctions
      2. Exclusion of evidence
      3. Adverse inference
      4. Default judgments
      5. Criminal penalties
  3. Proposed FRCP Rule 37(e) and the Evolving ESI Spoliation Analysis
    1. Proposed amended Rule 37(e) as part of the eDiscovery mosaic: targeting a universal standard
    2. The workings of proposed Rule 37(e)
      1. Three part test at the Rule core
      2. Prejudice and available remedies
      3. Intent to deprive
    3. The Emergence of an ESI preservation safe harbor
    4. The Rule amendment process and the road ahead

Benefits

The panel will review these and other key issues:

  • What complexities must be considered in creating and implementing litigation holds?
  • What should in-house and outside counsel do to mitigate the likelihood of facing spoliation allegations?
  • What defense theories exist to combat spoliation allegations?
  • What policies should be effectuated to lessen or avoid potential penalties in the event of a finding of spoliation?
  • What are the workings of proposed Rule 37(e), including the three part test, prejudice and available remedies and intent to deprive?

Faculty

Jason Bonk
Jason Bonk

Member
Cozen O'Connor

Mr. Bonk focuses his practice in commercial litigation. He has represented clients across a wide range of industries in...  |  Read More

James S. Kurz
James S. Kurz

Partner
Redmon Peyton & Braswell

Mr. Kurz's law practice builds on his experience as a litigation partner with two AmLaw 100 firms, his time as a...  |  Read More

Daniel D. Mauler
Daniel D. Mauler

Partner
Redmon Peyton & Braswell

Mr. Mauler is a trial lawyer with a background in information technology and gravitates to technology-intensive cases....  |  Read More

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