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Litigation Process

Litigation Process

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Litigation Process

The Research Element

Legal Hold Notice

A legal hold refers to the process that is used by an organization to preserve all the relevant information when it is reasonably anticipating litigation. Basically, it is instigated through a notice or another form of communication that is issued by the legal counsel to an organization with the objective of suspending the normal processing or disposition of documents and records (Scheindlin, 2016). In the recent times, amendments made to the Federal Rules of Civil Procedure tend to address the discovery of information that is stored electronically by expanding the traditional legal hold to more than the protection of paper documents (FRCP, 2015). Following these amendments, organizations are now required to hold all electronic records until all pending legal matters are officially settled.

While entities operating in the United States are not legally bound to indefinitely preserve their business information and records, they are required to preserve all the relevant data when they are anticipating a lawsuit or an investigation into their activities. A legal hold notice works by ensuring that the affected organizations issue relevant instructions to their employees that direct them to preserve an avoid destroying or modifying specific records and other relevant information, whether stored in paper or electronically, which may be pertinent to the subject matter of an impending lawsuit (Scheindlin, 2016). The legal hold notice is based on the need to prevent spoliation of evidence in the course of discovery and is governed by several regulations and legal statutes such as the Sarbanes-Oxley Act of 2002. Its objective is to ensure that the organization conforms to its duty of preserving and producing relevant information needed in the litigation.

There are four instances in which the legal hold notice is triggered. The first is once the business receives a complaint from a plaintiff or is put on notice about a pending lawsuit filed against it. The second is once a company receives a subpoena requesting for information in instances when it has been named as a third party to an ongoing lawsuit. The third instance is when a business receives an official order of investigation sent from any regulatory body in the United States. The fourth is once an organization is or becomes reasonably aware of a possible legal claim against it (Arkfeld, 2017). Thus, a legal hold is triggered in instances when a company anticipates a litigation or investigation, which might occur even before a legal complaint is filed against it. During such incidences, it is up to the organization to issue a hold and suspend all its routine document destruction procedures under their typical document retention policies in an attempt at preventing the loss of any pertinent information that might be significant to the subject matter of the trial.

Besides the four instances, a litigation hold can also be issued in instances when an organization decides to initiate a lawsuit. A complaint is brought before the management by a whistleblower, and any other instances in which its experience may have triggered a lawsuit or an investigation by the government (Arkfeld, 2017). A legal hold notice is issued to all employees to inform them of their role in identifying, locating, and preserving information which may be pertinent to an existing or anticipated litigation. It should be related to the claims or defenses outlined in the lawsuit or subject matter in the lawsuit. It is issued to ensure that the litigants are able to discover and access the admissible evidence that is needed in their case.

There are numerous laws that influence the legal hold notice process under the Federal Rules of Civil Procedure. The first is Rule 26, which posits that a party must provide all the relevant information and documents to the other parties, including the name and address of all individuals, to have access to the discoverable information, unless exempted by the court under Rule 26(a) (Higginbotham, 2016). Rule 33 of the Federal Rules of Procedure states that unless otherwise ordered by the court, the involved party should issue about 25 interrogatories to the other party (Brockway, et. al., 2013). Finally, Rule 37(f) stipulates that apart from special circumstances, a court is not allowed to enact sanctions on a party for its inability to give electronically stored information that is lost through good-faith operation or routine procedures of an organization’s electronic information system (FRCP, 2015).

The Meet and Confer Conference

The meet and confer conference as outlined by the Federal Rules of Civil Procedure is instrumental to the management of e-discovery during the litigation process. It is done in the presence of all the involved parties. Its objective is to create a plan on how the legal action will be done and to minimize the costs incurred during e-discover and any delay that might accompany the resolution of disputes during discovery (Scheindlin, 2016). The conference is carried out on a mutual cooperative basis. In accordance with Rule 26(f), the parties involved are required to issue a report on their agreements and disagreements in the discovery plan that is issued to the court (Higginbotham, 2016).

The relevant Federal Rules of Civil Procedure governing the meet and confer are outlined in Rules 16(b) and 26(f). They stipulate that both the court and the legal counsel should take into consideration all the e-discovery issues as early in the litigation process as possible. The defendants and all other involved opposing parties are required to meet and confer not less than three weeks or 21 days before holding the scheduling conference with the court so as to set the pace on agreements regarding the storage of electronically stored information, its production, the means that will be used to filter out the pertinent information, and the means to protect the privileged information (Brockway, et. al., 2013). Once the involved parties have met at the table and the scheduling conference has been done, then the court is allowed to give a scheduling order, which will direct the pace of the lawsuit.

There are numerous topics for discussion that occur at the meet and confer conference. One of them is the relevant custodians, and it basically determines the individuals within the organization and the legal team members who have access to discoverable information. The conference also determines the types of discoverable data, which may be contained in emails, hard drives, computers, websites, social media, mobile devices, remote servers, and cloud storage (Haydock & Herr, 2016). At the same time, it allows the involved parties to discuss purchasing and billing.

There are several benefits that may be gained by an attorney attending the meet and confer conference. To begin with, such an attorney is able to gauge the extent of the other party’s electronically stored information and who possesses it. Such data is highly relevant during a lawsuit as it allows the attorney to identify the number of individuals that claim custody of it so as to easily request for relevant data and files during discovery (Haydock & Herr, 2016). Secondly, it allows the attorney to determine the relevant electronically stored information that is reasonably accessible and which is pertinent to the case. Through this, the lawyer will not be blind-sided by the other party in determining what type of data should be produced and accessible during litigation. Lastly, he or she will be in a position to determine the relevant dates and time frames that are fundamental to their case (Haydock & Herr, 2016). During the conference, the attorney will be able to gauge the other party’s reaction to determine the time frame that may contain relevant documents pertinent to the case.

Request for Production of Documents (RFD)/ Request for Admission of Evidence (RFA)

Request for Production of Documents (RFD) is a term which refers to the formal process through which one party requests the other to hand over the relevant copies of any evidence that is related to the case in the form of documents with the intention of gathering pertinent information about a case. The party that is issued with the RFD is under legal obligations to find all the documents indicated in the request and to turn them over to the other party as documents unless in cases when the requested files qualify for an exception. On the other hand, Request for Admission of Evidence (RFA) is a term used to refer to the process through which one party requires the other to either admit or deny the truth about the relevance of the facts contained in a document or its genuineness (Arkfeld, 2017). It is also described as the demands that are made to the parties involved in a litigation process requesting them to admit or deny specific facts or controversies under oath.

The relevant Federal Rules of Civil Procedure governing RFD and RFA fall under Rule 34(b) (2) and 36. Rule 34(b) (2) states that the parties issued with the RFD request should respond in writing within a period of 30 days upon being served with the request or within a similar time period after the meet and confer conference (Arkfeld, 2017). Rule 36 stipulates that a party may issue a written request to admit the truth on issues contained under the scope of Rule 26(b) (1) to the other party (Higginbotham, 2016). The Rules further state that the response given by the requested party should indicate whether investigations or any other related activities are allowed as requested, and if not, state the ground and reasons for objecting to the request.

Proportionality is an issue that is addressed under Rule 26 (b) (1) of the Federal Rule of Civil Procedure. The Rule states that unless the scope of discovery is restricted by a court order, the involved parties are allowed to obtain discovery on all non-privileged matter, which is pertinent to the claim or defense brought forth by either party, and should be proportional to the needs highlighted in the case (Higginbotham, 2016). Thus, the scope of discovery should consider the relevance of the issues raised in the lawsuit, the level of controversy, the level of access that the parties have to relevant information, and the resources available to the parties involved.

In RFD and RFA, a subpoena decus tecum is issued by the court requiring the parties involved in a lawsuit to produce certain documents, books, or other tangible documents. This subpoena is also referred to as the ‘subpoena for the production of evidence’. It contrasts the standard subpoena as it does not require the subject or individual named to give an oral testimony during disposition or trial (Arkfeld, 2017). Rather, it only orders such a person to produce the items, files, or documents indicated in the subpoena.

Minor Issues

All the relevant people who are involved in the e-discovery process play different roles. The supervising attorneys involved in e-discovery are in charge of all the actions made by the case team. They are also responsible for all the actions and decisions of the non-attorney personnel, including paralegals, legal secretaries, IT personnel, and other litigation support professionals (Scheindlin, 2016). The IT personnel are responsible for ensuring data security and preventing any unauthorized access or disclosure of their organizational information. The employees are responsible for upholding the litigation hold by ensuring that they do not destroy any electronic records until all pending legal matters are officially settled. Experts and consultants play a key role in assisting the involved parties to identify the specific documents and time frame that is relevant to the lawsuit.

The document retention policies in e-discovery are aimed at ensuring compliance with the requirements of regulatory retention. To begin with, companies need to have valid document retention policies aimed at ensuring that they are not at risk for spoliation claims, including monetary sanctions (Haydock & Herr, 2016). Moreover, companies have an obligation to preserve documents which may be pertinent to potential or pending litigation. Thus, these policies are aimed at protecting organizations from any spoliation claims.

There are different file types which fall under e-discovery. They include emails, loose files or other forms of email attachments, including word processing documents, Windows, DOS, and Mac word processor, spreadsheets, images, presentation, and audio as well as visual media (Hewitt & Carlson, 2017). Given that the detection of supported container files is often done by considering the contents of an actual file, there are many other file formats that are allowed under e-discovery.

Numerous existing software and e-discovery companies help with the process. For instance, the Discovery Assistant software program which is meant to process email, image files, and electronic documents in order to produce relevant metadata and extracted files. Other software programs include Logikcull, IPRO Eclipse SE, Onna, Algolia Search, Concordance, and OpenText ECM (Hewitt & Carlson, 2017).

The Performance Element

To: All Employees

From: Operations Manager, Syrah Enterprises Co. Ltd.

Date: 12 February 2018

RE: Document Preservation for Pending Litigation, Susan v. Syrah Enterprises Co.; Civil No. 732

This notice is to inform all employees that you must preserve and reserve all records, including all documents that might be relevant to the lawsuit referenced above. This litigation notice is related to the pending lawsuit against our company (Syrah Enterprises Co.) in the First Circuit Court for the State of California, entitled Susan v. Syrah Enterprises Co.; Civil No. 732. In the lawsuit, Susan Smith (hereby referred to as “Susan”) alleges that Syrah Enterprises Co. discriminated against the complainant by passing her over for a promotion to a Manager position due to her gender and sexual preference. Susan also alleges that Syrah Enterprises Co. failed to pay her certain wages for her overtime work and duties. In line with this lawsuit, it is important that we retain all the documents which may be required to meet our discovery obligations under the relevant federal and state laws.

Categories of Information, Documents, and Electronic Media to Preserve

Until I issue a written cancellation, the listed files, documents, and electronic media should be retained, even if company policies may otherwise require you to dispose such items in accordance with its document retention policy. These include:

  1. Susan’s personnel file
  2. All personnel evaluations relating to Susan’s job performance
  3. All electronic information, recorded oral communications, and written/types documentation relating to Susan’s employment
  4. All notes that may have been taken and recorded during meetings, conversations, and phone calls with the plaintiff
  5. Any documentation related to any complaints that Susan may have made during her tenure at the company.

The appropriate time period from when the pertinent materials should be preserved is 1 April 2015 to present. Any Syrah Enterprises Co. Ltd. document retention schedules and procedures have therefore been suspended in as long as this legal hold notice remains in effect.

Procedures to Follow if Contacted about this Lawsuit

Besides our outside counsel John Meyers and Co. Associates, if you are contacted by anyone outside Syrah Enterprises Co., please refrain from talking to them and instead refer them to me. In simple terms, avoid speaking or making contact with Susan or her attorney. Also, kindly direct any questions that you may have regarding this issue to me.

 

 

 

 

 

 

 

 

References

Arkfeld, M. R. (2017). Arkfeld’s best practices guide: Information technology primer for legal professionals. New York: LexisNexis.

Brockway, B., Bunte, A., Van Wagoner, C. J., Taylor, S., Muller, M. S., Prahlad, A., … & Reddy, R. G. (2013). U.S. patent No. 8,396,838. Washington, DC: U.S. Patent and Trademark Office.

FRCP (2015). Amendments to the Federal Rules of Civil Procedure. Retrieved from https://web.archive.org/web/20141021110256/http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/EDiscovery_w_Notes.pdf.

Haydock, R. S., & Herr, D. F. (2016). Discovery practice. New York: Wolters Kluwer Law & Business.

Hewitt, J. R., & Carlson, J. B. (2017). Securities practice and electronic technology. Cambridge: Law Journal Press.

Higginbotham, P. E. (2016). Federal Rules of Civil Procedure, Rule 26, Duty to Disclose: General provisions governing discovery. Moore’s Federal Practice-Civil6.

Scheindlin, S. (2016). Electronic discovery and digital evidence in a nutshell. Philadelphia: West Academic.

 

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