WWW.ABSTRACT.XLIBX.INFO
FREE ELECTRONIC LIBRARY - Abstract, dissertation, book
 
<< HOME
CONTACTS



Pages:   || 2 | 3 | 4 | 5 |   ...   | 8 |

«Research Project Underwritten by: The Greater Los Angeles Chapter of ARMA International The Orange County Chapter of ARMA International And The ARMA ...»

-- [ Page 1 ] --

LEGAL HOLDS FOR “ANTICIPATED

LITIGATION”: New Case Developments to

Determine Triggering Events & Scope of

Production

By

John J. Isaza, Esq.

October, 2007

Research Project Underwritten by:

The Greater Los Angeles Chapter of ARMA International

The Orange County Chapter of ARMA International

And

The ARMA International Educational Foundation Endowment

© 2007 ARMA International Educational Foundation 1609 Terrie Drive Pittsburgh PA 15241 USA www.armaedfoundation.org Copyright ARMA International Educational Foundation www.armaedfoundation.org

TABLE OF CONTENTS

INTRODUCTION

SPOLIATION, LEGAL HOLDS AND THE DUTY TO PRESERVE

Overview of the Spoliation Doctrine

The Duty to Preserve in General: Legal Holds

The Rambus Decisions

BRIEF DISCUSSION OF TRIGGERING EVENTS FOR “PENDING” LITIGATION.............. 9 TRIGGERING EVENTS FOR POTENTIAL LITIGATION

Pre-Litigation Correspondence

Letter from Party Threatening Legal Action

Letters From Party’s Attorney Before Litigation

Notice to Insurance Carrier

Filing Claims with Administrative Agencies

Substantive Conversations with Supervisors & Others

Retainer of Counsel and/or Experts

Imminent Lawsuit Apparent or Other Red Flags

PartialSettlement of Claims

Quinby v. WestLB AG (S.D. NY 2006) 2006 U.S. Dist. LEXIS 64531

Letter Requesting Explanation for Non-Hiring May Have Triggered Duty to Preserve.......... 17 Circulation of Internal “Document Hold” Memoranda

Severity of Injuries Combined with Totality of Circumstances

Pace Case

Hanke Case

DETERMINING THE SCOPE OF THE LEGAL HOLDS

Determining Scope of Litigation Holds for Electronic Records in General

The Sedona Principles

The New & Revised Federal Rules

Specific Case Examples Regarding the Scope of Litigation Holds

Manufacturing & Product Design Records

Audiotapes

Maintenance Inspection Records

Technical Emails

Ephemeral Information

Key Players and Their Documents

Drafts of Employee Evaluation Documents

Employment Decision Documents

Computer Networks and Hard Drives

Co-Worker Emails

Server Log Data

Inaccessible Back-Up Tapes

CONCLUSION

–  –  –

INTRODUCTION

In 2004, the ARMA International Educational Foundation sponsored a study entitled “Legal Holds and Spoliation: Identifying a Checklist of Considerations that Trigger the Duty to Preserve” (hereafter the “2004 Study”).1 The 2004 Study identified a duty to preserve continuum for records retention in general. It also provided parameters for triggering a “legal hold”2 on destruction of records subject to destruction not only under the records retention policy, but also for any other documents or information in the company’s possession at the time.

Since the 2004 Study was published, companies continue to struggle with litigation holds for foreseeable, potential or anticipated litigation, as contrasted with “pending” litigation where the company has already been served or is aware of the lawsuit being filed in court. Foreseeable, potential or anticipated litigation is a thorny case or fact-specific issue. On top of that, the revised Federal Rules of Civil Procedure, effective December 1, 2006, have made the issue a top priority. Accordingly, the purpose of the instant supplemental study is to survey cases that address when the duty to preserve attaches for such potential or anticipated litigation, including the all-important determination of scope (i.e., what to preserve).

As noted in the 2004 Study, a comprehensive treatment of the spoliation doctrine was not within its scope, and the same goes for this supplemental study. Other authors have

documented the subject extensively.3 That said, at the core, this supplemental study will:

–  –  –

To download a copy of the study, go to www.armaedfoundation.org.

Also known as “litigation hold” and referred interchangeably throughout this document with the phrase “legal holds.” See, e.g., Kaye, Richard. “Effect of Spoliation of Evidence in Product Liability Action.” 102 ALR 5th 99 (2004 West Group). This article provides a comprehensive and current treatment of the effect of spoliation of evidence in all 50 states; see also, Eng, Kevin. “Spoliation of Electronic Evidence.” 5 BU Journal of Sci & Tech 13 (1999); Egan, Christopher. “Arthur Andersen’s Evidence Destruction Policy: Why Current Spoliation Policies Do Not Adequately Protect Investors.” 34 Tex. Tech L. Rev. 61 (2002).

Copyright ARMA International Educational Foundation www.armaedfoundation.org

I. SPOLIATION, LEGAL HOLDS AND THE DUTY TO PRESERVE

–  –  –

Although a comprehensive look at spoliation is not within the scope of this supplemental study, a brief summary of the doctrine is a necessary foundation. Failure to preserve evidence (or its destruction) or the failure to produce evidence is generally known as “spoliation.”4 It is legally defined as "the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." 5 Courts have a great deal of discretion in imposing sanctions for the destruction of potentially relevant documents. The decision to sanction a party for spoliation depends on several factors, including whether the conduct at issue was intentional, the degree of prejudice to the opposing party, and the availability of alternative evidence. The penalties for spoliation vary widely among the states and can include the following: (1) adverse inference instructions to the jury; (2) evidentiary sanctions; (3) dismissal of the case; and (4) an independent cause of action for either intentional or negligent spoliation. Various state and Federal acts, most notably Sarbanes-Oxley, have increased the reach of the spoliation doctrine from mere litigation matters to pending state and Federal investigations. Incarceration is also a potential penalty for spoliation, such as under Sarbanes-Oxley. 6





B. The Duty to Preserve in General: Legal Holds

A variety of sources gives rise to a duty to preserve potentially relevant evidence.

These include the following continuum of the duty to preserve: (1) statutes or regulations; (2) statutes of limitations; (3) potential, anticipated or threatened litigation;

(4) receipt of a preservation letter from opposing counsel or an investigation notice from an agency; and (5) service of a complaint, discovery requests, court orders, or other events that occur in conjunction with litigation. This supplemental study will focus on legal holds and the duty to preserve in the context of potential, anticipated or threatened litigation. This area is the most critical for the “legal hold” decision. It is the most difficult to predict or standardize in light of the courts’ use of the “reasonable foreseeability” test to determine when the duty to preserve arises. As a result, decisions in this context are fact-specific, so similar situations can lead to different results.

Pronunciation: "spO-lE-'A-sh&n; Function: noun Etymology: Middle English, from Anglo-French spoliacion, Latin spoliation-, spoliatio, from spoliare to plunder -a : the act of plundering b : the state of having been plundered especially in war; 2 : the act of injuring especially beyond reclaim. Merriam Webster Online Dictionary at http://www.m-w.com/dictionary/spoliation.

Zubulake v. UBS Warburg (S.D.N.Y. July 20, 2004) 220 F.R.D. 212, 217.

18 USC 1519 (imposing fines and prison sentences of up to 20 years for anyone who knowingly alters, destroys, mutilates, conceals, covers up, falsifies or makes false entry in any record, document or tangible object with the intent to impede, obstruct or influence the investigation or proper administration of any department or agency of the United States)(Emphasis added.)

–  –  –

One instructive example on how unpredictable the doctrine of spoliation can be, especially in the pre-litigation scenario, arose in an intellectual property case. Courts in Virginia and California reached dramatically different conclusions about whether a technology development company had engaged in actionable destruction of documents under the same set of underlying facts. Under the facts in Hynix v. Rambus (N.D. Cal.

2006) 2006 U.S. Dist. LEXIS 30690, as well as Rambus v. Infineon (E.D. Va. 2004) 220 F.R.D. 264, rev’d on other grounds 318 F.3d 1081, and Samsung v. Rambus (E.D. Va.

2006) 439 F.Supp. 2d 524, Rambus had created and implemented a retention policy in conjunction with its intellectual property defense strategy. At least two years before filing its patent infringement claims, Rambus employees participated in so-called office “shred days.” Hynix v. Rambus (N.D. Cal. 2006) at 30690 (p.11). The goal of the exercise was to make the company “battle ready.” Samsung v. Rambus (E.D. Va. 2006) 2006 U.S. Dist. LEXIS 50007. Two Virginia court decisions found that Rambus committed various acts of litigation misconduct, including the intentional destruction of documents. Rambus, Inc. v. Infineon Techs. AG, (E.D. Va. 2004) 222 F.R.D. 280, 286, citing Rambus, Inc. v. Infineon Techs. AG, (E.D. Va. 2001) 155 F.Supp.2d 668, 680-83, rev’d on other grounds 318 F.3d 1081. In an interesting twist, the California court did not find spoliation, though its decision was based on the same basic set of facts. This remarkable and unusual set of inapposite decisions lends itself to careful analysis.

The Underlying Facts of the Cases

Rambus is a company that develops and licenses technology to companies that manufacture semi-conductor memory devices. Beginning in early 1998 and continuing through 1999 and 2000, Rambus developed, refined, and implemented a patent licensing and litigation strategy, which was aimed at several specifically identified manufacturers.

Among the targeted manufacturers were Infineon, Samsung, and Hynix Semiconductor, Inc.7 In October 1997, Rambus hired a consultant to implement its plan to secure royalties from manufacturers whose products Rambus considered infringing its patents and entrenching on its technology. Samsung v. Rambus, 439 F. Supp. 2d at 545. At a meeting with prospective lawyers in early 1998, Rambus stressed that it needed to make itself "battle ready" by gathering critical documents to put into a searchable, coded electronic database and that the company needed a "document retention policy."8 Even before the first “shred day” in 1998, Rambus had sent 1,268 computer tapes to be Because Rambus technology is so unique, their patents are extensive and fundamental. Thus, companies would not be able to develop Rambus-compatible technology or Rambus-like technology without infringing on multiple fundamental claims of their patents. Samsung v. Rambus, 439 F. Supp. 2d at 545. By the late 1990s, Rambus realized that manufacturers were using its technology and patented inventions to make infringing products. And, by then, Rambus noted that steps must be taken to have the industry take Rambus' intellectual property rights seriously.

Meeting notes reflected that it would be necessary to clean out all attorney notes from patent prosecution files so that they would conform with the official files. Further notes reported that Rambus needed to litigate against someone to establish its patent rights. Id. at 546. In fact, Rambus had identified, as components of aggressive readiness, the need to prepare a discovery database and the need to select experts. Id.

Copyright ARMA International Educational Foundation www.armaedfoundation.org degaussed on or before July 1, 1998. Id. at 50007 (p.36). At least one document identified specific litigation targets and articulated the strategy that those targets should be sued in separate suits, so as to minimize the ability of the targets to cooperate with each other in defending the case. 9 The California Court’s Findings in Hynix v. Rambus Despite the above noted apparent acts of spoliation in the face of anticipated litigation, the court in California did not find spoliation. The complaint in this case was filed on August 29, 2000. The primary question before the court was whether Rambus adopted and implemented its document retention policy in advance of reasonably foreseeable litigation for the purpose of destroying relevant information. Hynix v.

Rambus, (N.D. Cal. 2006) 2006 U.S. Dist. LEXIS 30690 (p.16). The court determined that the retention policy and the so-called “shred days” were not adopted in bad faith. The court first noted that “a legitimate consequence of a document retention policy is that relevant information may be kept out of the hands of adverse parties.” Id. citing Arthur Andersen LLP v. United States, 544 U.S. 696, 125 S. Ct. 2129, 2135, 161 L. Ed. 2d 1008 (2005).10 In contrast, however, the court acknowledged that a document retention policy adopted or utilized to justify the destruction of relevant evidence is not a valid document retention policy.” Id. at 30690 (p.16).

Although Rambus began to plan a litigation strategy as part of its licensing strategy, the court deemed that it could not be said to be “reasonably probable” because several patent-issuance contingencies had to occur before Rambus could engage in litigation. Thus, the court ruled that Rambus's adoption and implementation of what it deemed a “content neutral” Document Retention Policy was a permissible business decision. The destruction of documents on the shred days in 1998, 1999 and even into 2000 pursuant to the policy did not constitute unlawful spoliation. Id. at 30690 (p.18-19).

Even a reference to “work product” on privilege logs did not support the conclusion that litigation was anticipated. Id. at 30690 (p.19). The court clarified that California law protects a lawyer’s work-product even if prepared “in a non-litigation capacity.” Id.



Pages:   || 2 | 3 | 4 | 5 |   ...   | 8 |


Similar works:

«Herausgeber: DEUTSCHE GESELLSCHAFT FÜR DIE VEREINTEN NATIONEN e.V. Zimmerstraße 26/27 10969 Berlin Tel. (030) 259375-0 Fax: (030) 25937529 E-Mail: info@dgvn.de Web: www.dgvn.de Nr. 114 Rechtsstaatlichkeit und Verantwortung in der Friedenssicherung – Entwicklungen, Potenziale und Herausforderungen für Wissenschaft und Praxis Diskussionen zur (UN-) Friedenssicherung Dokumentation des Workshops „Rule of Law and Accountability in Peacekeeping” am 28. Januar 2014 Von Patrick Moss ISSN...»

«IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 2015 Term FILED _ November 18, 2015 released at 3:00 p.m. No. 13-1128 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS _ OF WEST VIRGINIA v. Submitted: October 6, 2015 Filed: November 18, 2015 Jessica H. Donahue Rhodes, Esq. Mark McMillian, Esq. Office of Disciplinary Counsel Erin K. Snyder, Esq. Charleston, West Virginia Mark McMillian—Attorney at Law L.C. Counsel for the Petitioner Charleston, West Virginia Counsel for the...»

«Draft 4.10.13 – For Permission to Cite Please Contact One of the Authors EVEN IN A DIGITAL, DATA-DRIVEN WORLD, WE STILL NEED TRAVEL AGENTS.AND LAWYERS Prepared for the Georgetown Law Symposium on The Shrinking Pyramid: Implications for Law Practice and the Legal Profession, April 12, 2013 Andy Daws, Vice President North America, Riverview Law; Andydaws@riverviewlaw.com Dr. Silvia Hodges, Director of Research Services, TyMetrix Legal Analytics; Adjunct Professor, Fordham Law;...»

«World Conference on Constitutional Justice Cape Town, 23 – 24 January 2009 The influence of constitutional justice on society in Belgium1 1. Have there been cases where a judgment of your Court has made a major impact on society? Please give examples. The Belgian Constitutional Court checks the conformity of legislation with three types of reference norms: (1) the provisions dividing the jurisdiction between the legislators of the State, the Communities and the Regions; (2) the principle of...»

«99 Reporting about Iraq: International Law in the Media during Armed Conflict ∗ RIGMOR ARGREN Abstract This article applies Critical Discourse Analysis to the Swedish print media’s portrayal of international law during the war in Iraq: The author focused on if and how standards of international law were represented in the Swedish media discourse between 20 March and 10 June 2003. The material that has been analysed consists of articles from four Swedish newspapers, the morning papers...»

«May a Conversion Obtained Through Deceit Be Annulled?RABBI STEVEN SALTZMAN This paper was adopted on June 14, 1989 by a vote of eleven in favor and eight opposed ( 11-8-0). Members voting in favor: Rabbis Amy Eilberg, Dov Peretz Elkins, David Feldman, Arnold Goodman, David Lincoln, Mayer Rabinowitz, Avram Reisner, Joel Roth, Steven Saltzman, Israel Silverman, Gordon Tucker. Members voting in opposition: Rabbis Kassel Abelson, Ben Zion Bergman, Richard Eisenberg, Howard Handler, Lionel Moses,...»

«ZUCKERT SCOUTT & RASENBERGER, L.L.P. ATTORNEYS AT LAW Transportation Antitrust Cases (2010) [reprinted from The Transportation Lawyer (April 2011)] This report summarizes reported antitrust decisions in 2010 that involved transportation companies. It updates the TLA Antitrust and Unfair Practices Committee report issued in April 2010 that included antitrust related transportation decisions for 2009. This report is submitted as a report of the Antitrust Committee Andrew M. Danas, Grove,...»

«NIU College of law summer Program Agen, France May 26 July 7, 2016 The NIU College of Law Summer Program in Agen, France is approved and accredited by the American Bar Association. This will be the 20th annual summer program offered by Northern Illinois University’s College of Law and the Université Bordeaux, in cooperation with NIU’s Study Abroad Office. PROGRAM DATES: The program will officially begin in Agen, France on Thursday, May 26, 2016 and will end in Agen on Thursday, July 7,...»

«SCOTT HALES Marching Through Memory: Revising Memory in E. L. Doctorow’s The March N ear the end of E. L. Doctorow’s The March, General William Tecumseh Sherman watches his army parade through Southern streets in the aftermath of a successful “March to the Sea.” As he watches his men pass beneath him, “somewhat less proud than usual of their shabby grooming and dusty uniforms,” Sherman longs to return to life on the march—“not for [the] blood and death” of the violent...»

«International Journal of Social Sciences Vol. 3/No. 5/special issue/2014 A New Legal Approach Towards the Nagorno-Karabakh Conflict Peaceful Resolution Edgar Elbakyan Edgar Elbakyan: Yerevan State University, Armenia. Email: elbakyan.edgar@gmail.com Abstract: The current research aims at proposing a new approach concerning the Nagorno-Karabakh conflict between The Republic of Armenia, the Nagorno-Karabakh (Artsakh) Republic on one hand and the Azerbaijani Republic on the other. The conflict...»

«Annette van Edig, Wolfram Laube und Nick van de Giesen Internationale und nationale Wasserkonflikte: Institutionelle und rechtliche Hintergründe der Wassernutzung des Voltaflusses am Beispiel Ghanas. Inhaltsverzeichnis I. Hintergrund: Das Glowa-Volta Projekt II. Das Voltabecken 1. Hydrologie und Klima 2. Fertiggestellte und geplante wasserwirtschaftliche Projekte am Voltabecken. 6 3. Aspekte internationaler Kooperation III. Nationale institutionelle und rechtliche Aspekte der Wassernutzung...»

«CIRCLE Working Paper 75 Voting Laws, Education, and Youth Civic Engagement: A Literature Review by CIRCLE staff with Haley Pero and Laura Nelson1 Executive Summary Since the founding of public schools in the United States, a primary purpose of public education has been to produce capable, informed, and engaged citizens. In particular, civic education can prepare students to be informed voters. Unfortunately, the turnout rates and the civic knowledge of young people are unacceptably low; there...»





 
<<  HOME   |    CONTACTS
2016 www.abstract.xlibx.info - Free e-library - Abstract, dissertation, book

Materials of this site are available for review, all rights belong to their respective owners.
If you do not agree with the fact that your material is placed on this site, please, email us, we will within 1-2 business days delete him.