Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

The Corporate CounselorKickerFeaturesTopicsLitigationSectionsNewsLJN Newsletters

A Compelling Need for Change in Legal Hold Practices

By Brad Harris and Charlotte Riser Harris
May 22, 2011

Over 17 months ago, Judge Shira Scheindlin sounded the clarion call once again ' organizations that fail to take reasonable steps in response to a preservation obligation do so at their peril. In January 2010, The Pension Committee of the University of Montreal, et. al. v. Banc of America Securities, LLC (685 F. Supp. 2d 456, SDNY Jan. 11, 2010) opinion reinforced principles that had been laid out as early as 2003. When litigation is reasonably foreseen, affirmative steps must be taken to prevent spoliation of potentially responsive information. Among other actions, failing to issue a written legal hold notice may constitute gross negligence, since the likely outcome of failing to notify those responsible for the custody, ownership or control of electronically stored information will be its modification or destruction.

Yet despite this call, many in-house counsel remain reluctant or unwilling to implement seemingly simple steps deemed reasonable by numerous jurists at the federal court level ' Issue a written legal hold. Take steps to ensure understanding and agreement to comply with the hold instructions. Send periodic updates and reminders. And be actively engaged in deciding what and how information needs to be preserved and collected.

This premium content is locked for LJN Newsletters subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
The DOJ's Corporate Enforcement Policy: One Year Later Image

The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.

Use of Deferred Prosecution Agreements In White Collar Investigations Image

This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.

The DOJ's New Parameters for Evaluating Corporate Compliance Programs Image

The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.

Compliance Officers: Recent Regulatory Guidance and Enforcement Actions and Mitigating the Risk of Personal Liability Image

This article explores legal developments over the past year that may impact compliance officer personal liability.

Bankruptcy Sales: Finding a Diamond In the Rough Image

There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.