More On Litigation Holds

The debate on Judge Scheindlins decison in the Pension Committee case is now in full swing.  Several public comments have decried the overly high standard set by the decision, with George Socha summarizing the common sentiment when he said on the LitSupport listserv:  “If one were to attempt to apply the standard set forth at pages 24 and 25 of the Pension Committee decision to the practices followed by most lawyers handling most lawsuits, I suspect that one would have to conclude that well upwards of 90% of attorneys handling lawsuits are committing gross negligence.”

I agreed with many of the statments George made about the decision. Shortly after his post, I responded with the following: 

George said:

Many of the tools aimed at assisting with legal holds are less than three  years old – hardly the sign of a mature, developed and stable market.
I think you’ll see that change quickly … I saw several new lit hold app vendors at LegalTech and have heard from at least two existing vendors that they are working on a lit hold app

There is no broad agreement on processes to use
This is where I think we need to make progress, not at the tool level .. protocols, principles, processes, best practices …whatever we call them
this is what we need to develop

But with regards to the 90% quote I responded:

Well the same could be said about police departments the day after the Miranda decision … altho the FBI by that time had already developed its own Miranda-like statement that they read to suspects being arrested.  Some people see the writing on the wall, some people don’t. Changing to meet judicially imposed standards is what we do, even if it’s difficult or unpleasant.

Really, if you boil the decision down to it’s basic requirements, what Judge Scheindlin says is you must send written legal holds to identified individuals and take ongoing and proactive steps to ensure compliance by those people. Is that really all that onerous?

In fact. most IT staff I speak with say then easily do that … if they are asked to do it.  So once again we circle back to education … perhaps the process isn’t being undertaken not because it’s incredibly difficult but because the attorneys don’t know the right questions to ask.  After all, as Judge Scheindlin points out,  all that is necessary to meet the stanadard is a reasonable, good faith effort.

I’lll repeat a paragraph I closed with in a post several months ago. It still seems strikingly appropriate:

What the question really shows is the complete disdain attorneys have for litigation support professionals. I mean come on now, would that same attorney ask why his IT or secretary couldn’t draft a Motion for Summary Judgement or a restraining order? The fact is most attorneys think if you don’t learn it in law school it isn’t professional and anyone should be able to do it.  Which is why first associates fresh out of law school in New York or Chicago or LA make 2-3 times much as IT and lit support professionals with 10-15 years experience.  And why Michael Arkfeld continues to say that 95% of the attorneys in the country don’t understand ediscovery at all


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