Legal Hold Pro

Legal Holds Feature in Gibson Dunn’s 2011 Mid-Year E-Discovery Report

Since the law firm Gibson Dunn started covering electronic discovery rulings in its twice-per-year reports, they have become a “go to” resource for practitioners.  The team at Gibson Dunn recaps notable cases and organizes the report so that key trends are highlighted and they recently released the 2011 Mid-Year E-Discovery Report.

In the first half of 2011, they tracked 187 decisions that involved electronic data discovery, a remarkable increase of 82 percent at the same time in 2010.  Also interesting to note that the number of instances in which litigants sought sanctions continue to rise (more than double the number in the same 6-month period as last year) and that courts continue to award sanctions at essentially the same rate (56 percent).

In narrowing our perspective to issues pertaining to data preservation practices, Gibson Dunn noted the following topics in the “Preservation and Legal Holds” section as highlighted in the second key topic area (behind sanctions):

• Must legal holds be written? – “[A] number of courts in the first half of 2011 deliberated over whether a legal hold notice must be written or whether oral notification is sufficient. Several courts have been unwilling to follow Judge Shira Scheindlin’s 2010 Pension Committee decision, which held that failure to issue a written legal hold notice constitutes gross negligence per se and gives rise to a presumption of spoliation and prejudice to the opposing party.” (p.2)
• When exactly is the trigger event? – “Another hotly litigated issue continues to be when the duty to preserve is triggered. In the first half of 2011, the Federal Circuit dealt with this issue in the latest chapter of the long-running Rambus saga.” (Ibid.) “Decisions in the first half of 2011 also reinforced that the duty to preserve is triggered when litigation is reasonably foreseeable, which may be well before a complaint is actually filed.” (p.8)
• Counsel’s ongoing obligation to manage holds. – “Courts also continued to remind counsel of their obligation not only to ensure that a legal hold notice is issued in a timely manner, but also to monitor its implementation.” (p.2)

The continued focus of the courts on issues pertaining to legal holds is a sign of the growing intolerance of jurists to a lackadaisical approach still shown by some litigants when addressing their preservation obligations.  We have covered most of the key opinions in previous posts, but it is impactful to see summaries and analysis of them by Gibson Dunn to help reinforce the need for organizations to be proactive about their preservation processes.

More Reading:

• PDF of Gibson Dunn’s 2011 Mid-Year E-Discovery Update
• EDD Update, “Blistering Pace of EDD Decisions at Mid-Year,” ALM Media, July 25, 2011
• Our post regarding Gibson Dunn’s 2010 Mid-Year E-Discovery Update

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