The scope and extent to which litigants and their lawyers must preserve and collect relevant documents during litigation remain significant issues for all litigants. The massive amount of electronically stored information (“ESI”) has made preservation and collection even more expensive and perilous for prospective litigants and their lawyers. Specifically, the failure to preserve and produce relevant information (even if the failure is inadvertent) may give rise to motions for sanctions and could derail discovery and trial preparation. At a minimum, the failure to preserve and produce will create an expensive distraction for the case team—a distraction that is often avoidable with careful planning and monitoring through a team comprised of legal, IT, and records management personnel.

Issues often arise during litigation regarding the scope of what needs to be preserved and protected and which custodians are in possession of that information. Understanding the scope of what information is considered relevant for a particular case is essential, and ensuring that any individuals who are interacting with records custodians know how to answer these questions consistently is critical. Moreover, custodians of relevant information who have not been identified as potential “records custodians” may self-identify to IT or records management, rather than to legal, as custodians, and this information needs to be shared quickly with all of the appropriate team members. Finally, identifying third parties who may have relevant information can often be neglected, and including individuals within the company who may have more direct contact with those third parties as part of the legal hold process can be vital to the success of a legal hold and production.

The most successful legal hold and document production processes result from an ongoing team effort within a company. Ideally, a group comprised of in-house and outside counsel, IT, records management, and key functional areas affected by the lawsuit is created when the litigation arises. Those stakeholders should routinely meet together throughout the retention and collection process to discuss the following important issues:

  • Identifying records custodians to receive the hold notice and updating the list of records custodians as new individuals are identified.
  • Preserving documents from individuals who are departing the company or changing functional areas during the lawsuit.
  • Discussing the scope of the preservation and collection obligations and revisiting the scope with the records custodians as issues change or the case evolves.
  • Identifying challenges with preservation or collection that need to be addressed with the opposing counsel or the court (including if there have been significant computer crashes, sunsetting of equipment, or the use of proprietary software that contains relevant information).
  • Assisting with the collection of relevant information from the records custodians.
  • Ensuring the records retention policies are being followed and that records housed off-site or in storage are identified and retrieved.
  • Discussing whether potentially relevant documents have been destroyed and providing documentation of same, if necessary. Tracking the team’s collection efforts and following up with custodians as needed.

Without an interdisciplinary team working together, it is much more difficult to identify the universe of information that must be preserved and collected. Moreover, a team approach fosters collaboration and investment in the process, which leads to a better result and a more defensible outcome should problems arise during the process. At Kilpatrick Townsend, we counsel our clients to develop defensible, cost-effective strategies for the collection and preservation of ESI and a key aspect of this approach includes the use of an interdisciplinary team comprised of stakeholders from at least the legal, IT, and records management departments within our client.

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