Litigation Hold Basics

We Power LifeSMLitigation Hold BasicsAllyson K. HowieManaging Counsel, Information GovernanceEntergy Legal DepartmentOctober 12, 2017The meaning of the word Ͳ HOLD2

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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