Better than Nothing is None Too Good

It's the duty of every litigator to be adept at drafting and deploying an effective, defensible legal hold notice. We know this because of scathing sanctions opinions calling the failure to implement a proper legal hold "grossly negligent,’ "reckless", "negligent" or simply "cruel to puppies."

Accordingly, the big firm brain trusts have concocted boilerplate legal hold notices, ready for insertion of pithy lines describing the dispute and poised to propel a payload of synonyms at countless souls condemned to wear the scarlet "KC."  Big firms easily identify Key Custodians because big firm research has shown that key custodians have the "@" sign in their e-mail addresses.  It's a dead giveaway.

But, just when Big Law is ready to toast "Mission Accomplished" to its mastery of the legal hold, up floats that turd in the punchbowl called 'reality.' The omnibus legal hold notice is like the yield on Bernie Madoff’s hedge funds: appealing in practice, but foolish in fact.

Don’t get me wrong. The one-size-fits-all legal hold notice is an improvement over the ever-popular "we don’t need no stinking notice" method. But, it’s still not very good.  Is "better than nothing" really all our clients deserve?

What we’re finding (when we choose to look) is that the typical legal hold notice is a dud, especially among a constituency crucial to success: the Information Technology (IT) staff. Directing IT to preserve e-mail and other ESI about a topic is like asking a priest about sex. Wait—bad analogy. How about, "It’s like asking a bank guard for investment advice?"

The IT staff care no more for the content of a message or document than a FedEx driver cares about what’s in all those packages and envelopes. The millions of messages and documents that IT stores and backs up are just bytes: gigabytes, terabytes, petabytes—it’s all just data.

Yet, how often is an omnibus hold directive sent to IT with the expectation that the technologists will somehow survey their kingdom of drives and tapes and segregate information relating to, e.g., faulty brakes, gender bias or leaky subsea wells? Does someone in the hospital’s legal department really believe there’s a backup tape labeled, "Mrs. Murphy’s Appendectomy?"

What we of the leather briefcases and yellow pads must realize is that electronically stored information is, at once, compartmentalized and commingled. The single e-mail that makes or breaks the case lives inside a folder, within a user account that’s part of a domain of many user accounts, which in turn comprise a database that’ spans an array of hard drives that constitute one or more volumes in a network of volumes that connects to other nodes of comparable complexity. What the IT staffer sees looks nothing like what legal sees from the other side of the telescope. It’s the difference between what I see when I look up at the night sky—the moon, some stars, maybe a planet--versus the roiling infinite universe that Stephen Hawking sees.

But back on Earth, the point is that preservation directives must speak to custodians in terms they understand, from perspectives they hold and be tailored to skills they possess. You wouldn’t ask someone in R&D to "ExMerge PSTs with dumpster contents for users at specified IP addresses." So, why would you ask IT to preserve documents "relating to the design, construction or testing of the Cameron TL BOP stack?"

Of course, tailoring the hold directive to the custodian and the data requires that lawyers acquire a deeper understanding of computing environments and applications than they possess. It demands more work earlier in the life of the matter, exacting inquiry and careful thought. In short, it requires lawyers to evolve and retrain or confront the fact that they aren’t qualified to perform a task that’s become a litigator’s core competency.

We are a profession in denial--better dressed versions of the assembly line workers in Detroit who insist that today’s marketplace value yesterday’s skills. Because lawyers control the board room and the factory floor of the justice system, we’re better equipped to ignore the inevitable. But as James Russell Lowell said so splendidly, "There is no good in arguing with the inevitable. The only argument available with an east wind is to put on your overcoat."

Time to button up, Mr. & Ms. Button-down.