From the Founder

Global companies face a myriad of laws that dictate how they handle information, specifically how long htey must retain information, when they must preserve it as evidence, what uses are permissible while in their possesion, and how and under what conditions it may be transported. Unfortunately, while the legal staff has legal and professional obligations under the law for a broad array of information, they do not have custody or control of that information - this is the domain of corporate information technology management (IT) organizaitons.

Concerns for data privacy and protection are amplifying, driven by globally diverse values. As a result, enforcement of existing privacy standards is on the rise. Additionally, conflicts are escalating between newly enacted US litigation laws and European privacy concerns after the FRCP changes in December 2006. This paper includes an overview of the EU directives and potential conflicts with discovery practices, retention program and data protection obligations for global companies.

Matt Cohen and Deidre Paknad discuss the pernicious problem of legacy data in most corporations. They combine process management and robust legal workflow with subject matter and data analysis expertise to provide a framework to efficiently inventory and categorize legacy data, to establish the facts needed to determine what data can be destroyed, and to document the process to help companies resolve the legacy data crisis.

The challenges of preservation now go beyond sending and managing hold notices. This article provides the benchmarks for a successful and defensible preservation process.

Communication between the legal department, IT, records and business people is one of the biggest sources of legal risk. This paper touches on things legal can do to reduce misunderstandings in its communications.

In The Corporate Counselor, Deidre discusses a compliance roadmap for the amended federal rules including early discovery, disclosure, and forms of production.

Hold notices and confirmations of compliance are arguably the lowest-cost method of preserving information and demonstrating good faith. Yet, as recently as a year ago, many companies didn't issue them at all or followed a haphazard approach that differed with every attorney and in every matter. In the wake of Zubulake and the run up to the effective date for the revisions to the Federal Rules, the vast majority of Fortune 500 companies are racing to improve and institutionalize legal holds processes. There are several core process issues and most of them find their root in the tools and techniques used to institutionalize the process.

Air, Water, Food – Mazlow’s hierarchy of needs, is borrowed and applied to address the corporate challenges under the Federal Rules. Air as a robust legal holds process, Water as a map of data sources, and Food as an enterprise retention framework, Mazlow’s theory is a metaphor for corporate priorities for discovery challenges.

As the revisions to the Federal Rules take effect December 1, many companies are looking at their processes to determine risks and gaps and to address them. This can be a daunting challenge and certainly the hurdles the Rules present are significant. It's made more daunting by confusion on the terms "retention" and "preservation". Both retention and preservation arise from law, but they have different meanings, disciplines, and implications.

Failure to demonstrate a robust legal holds process found “at least grossly negligent,” grounds for adverse inference instruction, spoliation sanction, and attorneys’ fees and costs award. Judge Andrew J. Peck of the Southern District of New York found in In re NTL, Inc. Securities Litigation. Key take-aways from the case are provided.

Using three sources of guidance on legal holds obligations and expectations (Zubulake V, the Morgan Stanly decision, and the FRCP), Deidre explains how to develop and enhance the legal hold process with transparency and repeatability.