ABA TECHSHOW 2009: “Planning and Implementing the Litigation Hold”


UPDATED April 8, 2009: I have subsequently learned that Patrick Oot works for a subsidiary of “Verizon Wireless” and have changed his company’s name to simply “Verizon.”

The first session I attended at ABA TECHSHOW was “Assessing the Big Picture: Planning and Implementing the Litigation Hold” ably handled by the mallifluent Craig Ball and the dapper Patrick Oot (of Verizon).

Both Craig and Patrick are seasoned speakers in this space and the session flowed smoothly. I’ve elected to share snippets of their conversation below:

Patrick Oot: We (Verizon) looked at tools like Exterro and PSS Systems but we ultimately decided to design our own application to do internal identification/collection work. Granted, not everyone has access to a group of programmers and web designers, but it was the right decision for our company.

Craig Ball: Don’t make the first time you meet someone from your client’s IT department be the day you do data collection – take them out to lunch or meet them some other way. IT calls things by different words and there is a massive lack of communication.

Oot: You still have to conduct an investigation to find out the facts of the case. At Verizon, they haver a former IT person that works closely with the legal team, and he knows where all the “dead bodies” lie. Also, it’s important to pinpoint the owner of systems: for example, the owner of the billing system at Verizon is NOT the billing department, it is someone in IT. The owner of their collection program is NOT the legal department, it’s someone in IT.

Park Row, Apr 2, 2009Question from the Audience: How can you know if you have the right person that knows where the data resides?

Ball: You have to identify the core person. But I often find that the biggest problem is that no one has really paused and considered what the case is all about. There is a tension between IT and legal that is not going away anytime soon. Outside counsel, however, are getting called to the carpet for the actions of their clients. If a client works behind the curtain, then you have a problem with your client, and you must have a talk with your client. You may need to tell them that you can’t represent them if they won’t let you in.

Oot: I have a little different perspective – I own a process within my company. Some lawyers that I work with internally want very little involvement from outside counsel. Other internal lawyers want outside counsel to handle the bulk of the work. We are fortunate that we can accommodate either perspective. One thing that outside counsel can do, however, is make it known to your clients that you ARE willing to speak with their IT folks, and that it is important to you. I also require outside counsel that I work with to update a preservation memo.

Ball: That brings up a great point about recording your work. You must have a solid mechanism for keeping track of your collection and presentation activities so that you can defend your processes when they are attacked. Also, you MUST go to your client’s office to look for responsive data. Even if an employee replies that they don’t have any old data sitting around, more times than not you’ll find when you visit their office that they have an old laptop sitting on a file cabinet or some USB thumbdrives in a desk drawer.

Ball: One of my best tools for litigation hold is a label maker. So often computers get wiped and data gets deleted because the IT professional didn’t know that it was something to be preserved. Sometimes I’ll even put a label inside the computer so that when someone opens the box they see it.

Oot: Verizon gets a lot of calls at their customer service centers that end with “you’ll hear from my lawyer.” We actually did a study and found that only ONE of those threats ever came true. Reasonable suspicion is a moving target, it oftentimes is based on a gut instinct.

Ball: Everyone talks about a “trigger” event. I don’t want you to think of it as a trigger because a litigation hold doesn’t go BOOM and it’s all over. Rather think of the litigation hold as a valve that opens a little bit at a time. First you might open the valve to preserve the machine of the person who was fired. Next you might open the valve a little more to preserve the machine of that person’s supervisor. You can keep opening the valve, but at some point the valve can be shut off when necessary.

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