I wasn’t born a lawyer. Like many, I started my working life in restaurants. My favorite job was waiting tables at Emeril’s in New Orleans, partly because I learned so much (though free meals and tips didn’t hurt).
Before they let me take my first order, I had to pass a series of tests on food, wine, cigars and cocktails. That’s when I first learned about the trinity of Creole and Cajun cooking—bell peppers, onions and celery. Only after appreciating those building blocks was I able to move on to mastering the finer points of mouth-watering Creole cuisine.
So when the Daily Report asked me to write a monthly column on e-discovery, I figured the best place to start was with the building blocks. Perhaps the most important one—given that it often doubles as a stumbling block—is the timely issuance of an effective legal hold.
For the uninitiated, a legal hold is the name for the process that parties and their counsel must follow to ensure they preserve potentially relevant information. At a minimum, it means issuing a written directive to the custodians of that information—usually your client’s employees—explaining what needs to be preserved and how to do it properly. (I’ll cover the basic components of the legal hold letter in a future article.)
The obligation to issue a legal hold is triggered once the client reasonably anticipates litigation or a governmental proceeding or investigation. If that sounds familiar, that’s because it is. It’s the point in time when a party can begin claiming the work product doctrine. And it’s the trigger for notice under many kinds of liability insurance policies. It’s what I call the Trinity of Reasonable Anticipation.
The good news is that the overlap of these concepts makes the trigger for a legal hold easier to identify. Does your client have a basis on which to provide notice to its insurance carrier? Does your client have documents that it wants to shield by way of the work product doctrine? If so, make sure that a legal hold gets issued right away.
The bad news, depending on your perspective, I suppose, is that the trinity of reasonable anticipation can make things awkward for a party that ignores the overlap. I’ve noticed that, when it comes to identifying when a legal hold needs to be issued, my opposing counsel tend to be conservative, arguing for a later date. But then in their privilege logs, they claim work product protection for documents that were created long before they issued their legal hold. You can’t have it both ways.
So what triggers a reasonable anticipation of litigation or regulatory proceeding? It’s a hard question to answer in the abstract. But you can probably guess some common culprits: filing a lawsuit, receipt of a subpoena, receipt of a demand letter, or an accident or injury that is substantially likely to lead to litigation.
And remember, this isn’t just an obligation for one side of the v—if a party hires counsel to begin drafting a complaint on its behalf, I think it’s reasonable to argue that the client had a reasonable basis to anticipate litigation.
By now you are probably thinking that electronic discovery is a lot like a jambalaya or crawfish étouffée. True, it seems exotic and probably is courtesy of folks who sound like they are speaking a foreign language. But at its core, electronic discovery is made up of building blocks you know well.
So remember the trinity of reasonable anticipation—and once you spot the trigger, move quickly to make sure your client has notified its insurers, issued a legal hold, and taken a consistent position on the work product doctrine.