Litigation Holds in Employment Lawsuits: Creating an Early and Effective Plan for Collecting and Preserving ESI

Best Practices to Reduce Risks, Manage Costs and Avoid Sanctions Under the Amended Federal Rules

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


Conducted on Tuesday, April 26, 2016

Recorded event now available

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Program Materials

This CLE webinar will provide guidance to labor and employment counsel on implementing litigation holds in employment collective, class action and individual lawsuits. The panel will discuss recurring discovery and common records subject to preservation in employment actions and offer best practices for creating a litigation readiness and document preservation plan to avoid potentially costly spoliation allegations and sanctions under the new FRCP Rule 37(e).

Description

Employment lawsuits, particularly class and collective actions, have exploded in the last few years, exposing employers to costly and time consuming litigation. Discovery in these cases is often intensive, creating significant expense for employers and employees alike. Although employers possess far more ESI than plaintiffs, making litigation holds and e-discovery particularly onerous for companies, employees are at a disadvantage because they typically don’t have the resources or technical expertise to conduct forensic audits or analyze electronically stored information (ESI).

Mapping out a plan for collecting and preserving documents and ESI is essential to pursuing or defending an employment lawsuit. Early and effective litigation holds are a critical component of that plan and employment counsel is the linchpin in this process, responsible for ensuring compliance with preservation and collection requirements.

Lawyers must develop, implement, revise as appropriate, and ultimately lift, litigation holds. Accordingly, robust underlying policies are essential to avoid missteps and sanctions. Spoliation sanctions can range from monetary penalties, evidence exclusion, adverse inference jury instructions and default judgments. Counsel are best suited to position themselves to overcome spoliation allegations by having institutional guidelines that comport with best practices and ongoing legal obligations.

Listen as our authoritative panel outlines effective techniques for implementing litigation holds in employment lawsuits. The panel will discuss recurring discovery and common records subject to preservation in employment actions and offer best practices for creating a litigation readiness and document preservation plan to avoid potentially costly spoliation allegations and sanctions under the new FRCP Rule 37(e). The panel will also offer solutions to real life challenges faced by attorneys implementing litigation holds, including departing employees, obsolete or legacy software systems, data on smartphones and other mobile devices, and more.

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Outline

  1. Preservation triggers and implementing hold notices
  2. Elements of a litigation readiness and document preservation plan
  3. Defending against spoliation motions
  4. FRCP Rule 37(e) and the evolving ESI spoliation analysis

Benefits

The panel will review these and other key issues:

  • What are the complexities in creating and implementing litigation holds in the employment context?
  • What should in-house and outside counsel do to mitigate the likelihood of facing spoliation allegations?
  • What policies should be effectuated to lessen or avoid potential sanctions in the event of a finding of spoliation?
  • What effects are the amendments to Rule 37 and Rule 26 having on litigation holds?

Faculty

Yvette D. Everhart, Esq.
Yvette D. Everhart, Esq.

Law Offices of Cynthia N. Sass

Ms. Everhart’s practice focuses on litigation of employment discrimination cases, and she has significant...  |  Read More

John K. Rubiner
John K. Rubiner

Principal
Bird Marella Boxer Wolpert Nessim Drooks Lincenberg & Rhow

Mr. Rubiner regularly represents employers facing claims and threats from current or former employees. These...  |  Read More

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