Legal Holds and the Duty to Preserve

Join the Litigation Team of Bradley for a one-hour lunch presentation. This program will address practical aspects of implementing a legal hold including such issues as when the duty to preserve evidence first attaches; how to determine the scope of a legal hold; what should be addressed in a legal hold notice and to whom should it be sent; the enforcement provisions of a legal hold effort; how and whether to send a preservation letter to opposing counsel; what techniques and technologies should be used in data collection efforts; and under what circumstances can custodians be released from the burdens imposed by a legal hold notification. We will also touch on developing case law surrounding the question of whether the legal hold notice is itself privileged communication.

Conducting a Legal Hold properly is crucial in this day and age because virtually all discovery is electronic discovery. Evidence preservation and collection, therefore, requires a highly technical skill set, entailing technologies and standard practices unfamiliar to many lawyers. As a result, accusations of the destruction or spoliation of evidence are becoming more and more common in both federal and state courts as a strategy for turning the focus of a matter from the merits towards ancillary discovery questions and squabbles. The results can be very damaging, even to matters with otherwise strong legal grounding. The trade press is full of stories about adverse inference instructions to juries, sanctions of various kinds, and even outright dismissals brought about by perceived discovery errors or abuse. The majority of those problems arise from the evidence preservation and collection phase of litigation. This program will highlight the pitfalls and offer some suggestions on how to avoid them.

This course as been approved by the Alabama State Bar for one hour of CLE credit.

Bradley Speaker:

Stuart W. Hubbard