When the law firm is the client Handling legal holds, document collections and productions of your own firm’s documents

Samantha Lofton Dana Moore Caroline Sweeney Gillian Glass Speakers

What is a legal hold? “A legal hold is a communication issued as a result of current or reasonably anticipated litigation, audit, governmental investigation, or other such matter that suspends the normal disposition or processing of records. Legal holds may encompass procedures affecting data that is accessible as well as data that is not reasonably accessible.” The Sedona Conference Glossary: E-Discovery & Digital Information Management (Third Edition) September 2010 Version What we’ll cover today: how to prepare, best practices, common pitfalls Overview

Outside Counsel Firm General Counsel Risk management Information Governance / Compliance Records E-discovery / litigation support Attorney who handled the matter HR / Employment Counsel Who’s your client? Who’s in charge?

Reasonable expectation that litigation may arise Unhappy client Fee dispute Unhappy former partner or employee Notice of a claim against the firm or one of its clients in matters where we represented the client Subpoena or document request where the firm has relevant information Events that trigger legal hold

Policy and documented procedures Have a response team ready Templates: Checklist Data map Hold notice Custodian questionnaire Guidance for records custodians - - where to look, how to search Steps you can take to prepare

What exactly are we looking for? What is the issue at hand – maybe it’s not entire file What are the relevant client/matters What is the relevant time period Who would be the relevant custodians Current employees (whether currently assigned to matter or not) Former employees What are the relevant systems Identification of scope

Use firm systems to identify who worked on a matter (time and billing) Ask people you’ve identified to identify others who worked on this Don’t forget support staff Paper records Departed employees on hold for other matters? Practical tips

Customize your interview template for this matter Ask about sources of documents Practices regarding filing (what do they do, what does secretary do) How did they communicate with client (do you need to collect their phone?) Let your custodians direct you to their documents End with “Is there anything you thought I’d ask about that I left out? Anything else you want to tell me?” Interviewing custodians

Brief description of dispute Time period covered What you want the custodians to do Questionnaire Acknowledgment they can return to you Point of contact What should be in your hold notice

Potential custodians: Timekeepers or staff that may have relevant documents 3rd Party contractors Experts and consultants? Co-counsel? Prior counsel? Support Departments: Risk Management/Compliance Technology Department Human Resources Accounting Litigation Support Disseminating the hold

Track all matters and custodians on hold Matters may be associated with multiple holds Track hold implementation and compliance Identify and add new custodians Timekeepers Send periodic reminders Disseminate hold lift notice Hold administration

Sometimes preservation is enough But would have to suspend autodelete, is that burdensome? Do you have controls in place so users won’t delete? Can you lock down records in DMS? Can you/should you rely on end users? Know your users, do they comply with other firm policies? Mobile devices Preserve in place vs collect

Sensitivity about malpractice Inconsistent filing practices Issues collecting documents stored in the DMS Interesting metadata about documents stored in separate database, not with document itself Metadata considerations – need to turn automatic scrubbing off Client confidentiality and privilege Difficult to segregate files for just one client/matter “This is all non-billable” – no way to charge work Special considerations for law firm litigation and discovery

Are custodians collecting their own ? Can you provide form with instructions? How are you collecting from your DMS? Do you need forensic collection (for phones or hard drives)? Do you need to hire an outside vendor? Collection

Where are you reviewing the documents? May be best determined by how you are producing Do you have your own litigation support software? Do you want to review in the DMS or in Outlook? Who’s reviewing for responsiveness and privilege? Should it be folks who worked on matter or fresh eyes? Do timekeepers get billable hours credit? Review

What’s privileged? Not always easy to define the law firm’s privilege vs the client’s privilege May need to define some broad categories to set aside, such as internal memoranda, mental impressions of the client Documents that cover more than one client (conflicts checks, accounting reports, s that change topics) Review

Format - does the document request specify format of production? Should you do a full litigation support production or will opposing be happier with pdfs or even paper? Redactions Bates numbering – is every production starting with FIRM ? Is outside counsel handling? Production

How to evaluate the risk exposure Can you give them with your paper original documents? Could you have conflicts issues if they see misfiled documents? Are they managing review? Working with outside counsel