For The Defense, October 2010 - DRI Today

D R U G A N D M E D I C A L D E V I C Eto establish a strong, good-faith argumentthat the client complied with its preservationobligations for a court.To accomplish these tasks, attorneysshould consider requiring ongoing certificationsfrom custodians, communicatingnegative consequences for noncompliance,and utilizing audit and sampling procedures.For large-scale litigation, softwareCounsel must not onlyhelp implement a litigationhold but also continuallymonitor a client’s document-gathering process.products exist to assist attorneys with theseefforts. These products electronically monitorthe failure to receive a return confirmation,which in turn triggers an alert to theinvolved attorney to spur appropriate follow-up. Most software that manages legalholds includes a notification and follow- upcomponent, as well as an electronic log. Theefficiencies created by automation and automateddocumentation can be significant.First Steps: Identify Key Playersand Critical TeammatesCounsel’s first steps of e- discovery are toidentify the key players in a company’s litigationand establish working relationshipswith critical teammates, namely ITpersonnel.34 n For The Defense n October 2010Know Your PlayersThe duty to preserve ESI requires identifying“key players” in litigation and ensuringthat they preserve relevant documents.Counsel has the duty to ensure that allsources of potentially relevant informationare identified and preserved. See ZubulakeV, 229 F.R.D. at 432. Clients typically possessan overwhelming amount of ESI inthe form of e-mails and other documents,but the duty to preserve documents andthings for litigation is limited to materialsheld by and made for “key players,” or thoseemployees likely to have information relevantto the discovering party’s claims ordefenses. See, e.g., Goodman, 632 F. Supp.at 512, 516–17 (holding that a company’sfounder, CEO, and employee responsiblefor technical information were all key playersto whom the duty to preserve extended).Therefore, identifying and interviewingthese key players is critical to ensuringall potential sources of relevant data havebeen inspected. See In re Seroquel Prods.Liab. Litig., 244 F.R.D. 650, 663 (M.D. Fla.2007) (“Unless counsel interviews each[key] employee, it is impossible to determinewhether all potential sources of informationhave been inspected.”); Goodman,632 F. Supp. 2d at 517 (noting that the defendants’failure to issue a litigation holdto key players resulted in the loss of importantcomputer hardware). Counsel shouldinquire into key employees’ personal practicesfor document management and retention,and periodically remind them of theirobligation to preserve data. See Zubulake V,229 F.R.D. at 433–34; see also Gross Constr.Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256F.R.D. 134, 136 (S.D.N.Y. 2009) (requiringdiscussion between counsel and key playersto satisfy minimum e- discovery duties).The duty to interact with key playerspresents the immediate challenge oflocating these individuals. Personnel canchange quickly—especially in pharmaceuticalor medical device companies, whereemployee turnover or intra- company repositioningis common. It is, therefore, vitalfor counsel to advise the initially identifiedkey players participating in a litigation holdabout policies and procedures and periodicallyupdate the list of relevant custodians.A client must preserve documents ofemployees who leave the company or transferto a different part of the organization.See Scalera v. Electrograph Sys., Inc., 262F.R.D. 162, 176 (E.D.N.Y. 2009) (holdingthe defendants negligent, in part, for failingto preserve documents of a key employeewho left the company); Thompson v. HUD,219 F.R.D. 93, 100 (D. Md. 2003) (holdingthat former key employees’ e-mail recordsshould have been preserved even absent apreservation order).The size of a corporation can also add tothe challenge of identifying key players, ascourts often require document collectionfrom a large number of employees. JudgeScheindlin has cautioned that while the failureto collect records from key players constitutesgross negligence or willfulness, thefailure to obtain records from all employeeswho had any involvement with the relevantissues could also constitute negligence. PensionComm., 685 F. Supp. at 465; see ZubulakeV, 229 F.R.D. at 432 (“Unless counselinterviews each employee, it is impossibleto determine whether all potential sourcesof information have been inspected.”).Ideally, counsel should communicatedirectly with all key players and instructthem to produce active files and makes surethat backup media are identified and safelystored. Depending on the dispute, however,it may not be reasonable to collect from allemployees, for instance, if the relevant partyis a multinational pharmaceutical or medicaldevice company. Such a company willhave extensive employee lists and may havenumerous products on the market that haveno relevance to the product being litigated.Judge Scheindlin and others have recognizedthis problem and allow counsel to be“creative” in conducting the search for relevantinformation. See, e.g., Zubulake V, 229F.R.D. at 432 (providing the example of asystemwide, keyword search to supplementthe process of interviewing key players).Courts will consider the parties’ circumstancesin each instance to determine thesufficiency of their efforts: “The adequacyof each search must be evaluated on a caseby case basis.” Pension Comm., 685 F. Supp.2d at 473 n.68. Counsel should, therefore,adopt reasonable strategies based on a client’sresources for locating personnel andpreserving relevant ESI.Collaboration between counsel and clientwill help safeguard the process of identifyingkey players. Counsel should workwith a client to empower the organization’sgeneral counsel or head of human resourcesto communicate a litigation hold to theproper individuals and ensure that the listof key personnel is up-to-date. Anothermethod to safeguard the preservation processis to locate organizational charts oremployee rosters within a company’s databaseand use an electronic auditing systemto track and update potential changes inkey custodians. Whatever method counseland client choose, communication mustbe firmly established between the informationtechnology department, the humanresources department, general counsel,