We Power LifeSMLitigation Hold BasicsAllyson K. HowieManaging Counsel, Information GovernanceEntergy Legal DepartmentOctober 12, 2017The meaning of the word Ͳ HOLD2
23The Litigation Hold Notification Letter should include at a minimum the following: a statement(s) setting forth the purpose for the LitigationHold, a description of the litigation or other legal matter, a list of individuals or groups to whom the hold applies, a description of the potential types and sources ofinformation to be preserved, guidelines/instructions for determining what informationshould be preserved and by whom, etc., a reminder to recipients of their legal obligation and potentialpenalties for noncompliance, and instructions to recipients regarding who they can talk toabout the Litigation Hold and how to conduct thosecommunications.24
What happens when you fail to issue a Litigation Hold!27What is Spoliation? The destruction, significant alteration ornon-preservation of evidence that a partyknows or reasonably should know isrelevant to anticipated or pending litigation. Spoliation gives one party an unfairadvantage over an adversary.Zubulake v. UBS Warburg LLC ("Zubulake V"), 229 F.R.D. 422 (S.D.N.Y. 2004).28
Sanctions “Sanctions are appropriate when there is evidence that a party's spoliationthreatens the integrity of [the court]." MOSAID Techs. Inc. v. SamsungElec. Co., 348 F. Supp. 2d 332, 335 (D. N.J. 2004). Sanctions serve threefunctions: a remedial function (by restoring the aggrieved party to itsoriginal position), a punitive function, and a deterrent function. Id. A district court has the inherent power to sanction parties. Schmid v.Milwaukee Elec. Tool Corp., 13 F.3d 76, 78 (3d Cir. 1994). The choice ofa sanction to impose in a particular case is a matter within the sounddiscretion of the court. Gates Rubber Co. v. Bando Chem. Indus. Ltd., 167F.R.D. 90, 106 (D. Colo. 1996).29Potential Sanctions for Spoliation Civil and Criminal Charges Charges of malpractice Charges of perjury, tampering with evidence Discipline for Ethical Violations Reported to the State Bar Association Contempt Citations Monetary Sanctions Attorney’s fees Court Costs Precluding certain evidence from being introduced attrial Adverse Inference Instruction Dismissal – the most extreme sanction30
Failure to preserve relevant materials forms the basis for sanctions Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am.Sec., LLC, 685 F. Supp. 2d 456, 471 (S.D.N.Y. Jan 15, 2010) – monetarysanctions and adverse inference instruction Zubulake v. UBS Warburg LLC ("Zubulake V"), 229 F.R.D. 422 (S.D.N.Y.2004) – adverse inference instruction and reimbursement of costs to plaintiff Rimkus Consulting Group, Inc. v. Cammarata 688 F. Supp. 2d 598 (S.D. Tex.2010) - adverse inference instruction Qualcomm Inc. V. Broadcom Corp., 2008 WL 66932 (S.D. Cal. Jan. 7,2008), vacated in part and remanded, 2008 WL 638108 (S.D. Cal. Mar. 5,2008) - adverse inference jury instruction, awarded motion costs and attorneysfees and attorneys themselves sanctioned31Employee’s Obligation Employees should notify their manager/supervisor aswell as the Legal Department should they become awareof potential litigation. An attorney in the Legal Department will evaluate thesituation and determine whetherrecords/information/equipment should be placed onLitigation Hold.32
Coordinator/ Custodian ResponsibilityͲThe Litigation Hold Notification LetterͲ Immediately review the Litigation HoldNotification Letter. If you determine that theResponsible Attorney (“RA”) is requestingRecords owned by your business unit, you shouldimmediately: i. place those Records on hold (which meansDo Not Destroy); ii. inform the RA by e-mail of all Recordsplaced on hold by your business unit;33Coordinator/ Custodian ResponsibilityͲThe Litigation Hold Notification Letter (cont.)Ͳ iii. Segregate the records on hold by labelingthem or placing them in a different location; iv. Inform your entire BU as to which recordshave been placed on hold and their duty topreserve these records until further notice by theRA; and v. If requested by the RA copy the record(s) onhold and send the copy to the RA or if requestedsend the original record(s) to the RA and makesure to set a time period within which to pick upthe documents.34
Litigation Release Letter Counsel should ensure that the LitigationHold is in effect until a final judgment isrendered, a settlement has been reached anda formal release has been signed by allparties, or the case is dismissed and norelated claims remain outstanding, then aLitigation Release Letter can be completedand distributed.3536
If Litigation was not filed . . . The Litigation Hold should remain in effectuntil the factors that initially gave rise tothe anticipation of litigation are no longerin play.37Evidence Collection, Tagging & Storage It is not just hard copy documents andelectronically stored information that mustbe preserved when litigation or a claim ispending or anticipated. Equipment andother materials must also be preserved.38
Questions?“Hold On, I’m Comin”
Outside Counsel through In-House Counsel Generally case law uses the terms attorney/counsel 5 When rIssuance of the Litigation Hold Notification Letter Issue a Litigation Hold Notification Letter at the onset of litigation or whenever litigation is reasonably anti
patent litigation compensate for lawsuits that are unlikely to succeed). 10. The relationship between social media and litigation is not unilateral. While litigation can fuel social media activity, social media activity can also increase the possibility and affect the outcomes of litigation by increasing the information available to attorneys.
litigation on key factors that have contributed to recent patent litigation; (3) what developments in the judicial system may affect patent litigation; and (4) what actions, if any, PTO has recently taken that may affect patent litigation in the future. GAO reviewed relevant laws, analyzed patent infringement litigation data from 2000
Injury Litigation, Insurance Law, Arbitration, Mediation and Construction. Partner!DirectorlShareholder Matsumoto LaFountaine & Chow August 1, 1994 to April 30, 1999 General practice of law, including Civil and Commercial Litigation, Personal Injury Litigation, Insur
WA Litigation Guarantee STEWART TITLE GUARANTY COMPANY Litigation Guarantee Page 1 of 6 Order No. 21-11333-TO LITIGATION GUARANTEE Issued by STEWART TITLE GUARANTY COMPANY a corporation, herein called the Company SCHEDULE A Guarantee No.: 949242578 Premium: 578.00 Sales Tax: 51.44 Prepared by:
CHAPTER 5 Causes of Actions and Litigation Strategies 121 CHAPTER 6 Evidence 143 CHAPTER 7 Interviews and Investigation in Civil Litigation 167 UNIT THREE DOCUMENTS IN CIVIL LITIGATION CHAPTER 8 Pleadings: Complaint, Summons, and Service 203 CHAPTER 9 Motions Practice 237 CH
PERKINS COIE IS PLEASED TO PRESENT ITS THIRD ANNUAL FOOD LITIGATION YEAR IN REVIEW, summarizing important developments in consumer litigation affecting the food and beverage industry. Class action litigation against the food and beverage industry continued unabated in 2018, with 158 new lawsuits filed—a figure equaling 2015's high-water mark.
of strategic litigation. As discussed in the Foreword to this volume, strategic litigation is of keen interest to the Open Society Foundations (OSF), which both supports strate-gic litigation and engages in it directly—and thus has an interest in gaining an unbi-ased view of its promises and limitations.
the instructional use of small groups so that students work together to maximize their own and each other's learning. It may be contrasted with competitive (students work against each other to achieve an academic goal such as a grade of "A" that only one or a few students can attain) and individualistic (students work by themselves to accomplish learning goals unrelated to those of the other .