Getting Started on a Good Legal Holds Process Deidre Paknad President

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Getting Started on a Good Legal Holds Process
Deidre Paknad President CEO PSS Systems
deidre.paknad_at_pss-systems.com650/ 961-1717
ext. 137
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The Zubulake Checklist

• Affirmatively and repeatedly communicate legal
  holds to all affected parties
• Monitor compliance with legal holds on an ongoing
  basis
• Interview affected employees to determine sources
  of information
• Actively manage and monitor document collections
• Integrate your retention policies and
  coordinators with discovery challenges and
  responsibilities
• Enable your discovery liaison to readily
  describe information custodians, systems,
  storage, and your retention policies
• Thoroughly document and demonstrate the efficacy
  of your process
• Prepare to take responsibility for ensuring that
  information is preserved, collected, and produced

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Many Challenges

• COMPLEXITY
• Business, people, data
• RESPONSIBILITY WITHOUT CONTROL
• Litigators and compliance staff dont author or
  own the data
• COMMUNICATIONS WEAKNESSES
• Legal, IT, Records, line of business
• Relevance and form
• NEW RULES
• Set expectation for normal process, shine
  bright light on routine, good faith behaviors
• Meet and confer practice process expectations,
  short timeline for strategy
• Not an after thought ? a well thought out
  process!

I expect litigants to understand their
electronic discovery obligations and the emerging
rules. -- Judge Ronald Hedges
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Nuclear Weapons, Paper Sword
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STEP 1 Admit its a Process!

• Determine how and when you will communicate holds
• Send notices, involve records coordinators and
  IT, pre-emptive training
• Triggers, scenarios
• Templates, content, pre-approvals
• Confirmations, questionnaires
• Reminders, escalations
• Determine interview strategy
• Ad hoc, case by case, systematically, record
  keeping approach
• Determine your collection strategy
• In-house team and/or outside resources which
  tactic when?
• Division of labor on team
• Methods, tools
• Inventory management and chain of custody
• Define your controls and visibility needs
• All current holds! All matters with
  corresponding holds/status
• Custodian cross checking
• Details of notices sent, interviews conducted,
  data collected for every matter
• Form, location, accessibility, reusability

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AtlasLCC is the Process
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Reference Standard

• This is a good time to hit the best practice
  benchmark
• A good process should enable you to
• Track all legal holds in one place
• Send affirmative notices repeatedly, use confirms
  consistently
• Escalate non-responses to management
• Collect from employees, from IT and with
  discovery experts
• Inventory and track evidence automatically, not
  manually
• Get a first look as soon as youve collected
  the data
• Search and cull before you review
• Get leverage from matter to matter
• Feel comfortable certifying the completeness of
  preservation and production

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Strategic Tactical Outcomes
IMPROVED PROCESS STRATEGY

• Earlier look at evidence
• Hold compliance w/ less cost
• Accuracy and transparency

• REDUCED COST RISK
• Risk of failure
• Complexity and burden
• Data collected, reviewed