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This series of articles provides an overview of the steps necessary to implement a legally defensible, written litigation hold and are based on the “Seven Steps for Legal Holds of ESI and Other Documents” (ARMA International 2009). The seven steps for legal holds are designed to help organizations tackle the seemingly daunting task of implementing written litigation holds. Although this series was conceived months ago, written litigation holds are now more important than ever in light of U.S. District Court Judge Shira Scheindlin’s Opinion and Order in The Pension Committee v. Banc of America, Case No. 05-cv-9016 (SDNY Jan. 11, 2010, as amended Jan. 15, 2010). Her introduction is a fitting opening to the series:

In an era where vast amounts of electronic information is available for review, discovery in certain cases has become increasingly complex and expensive. Courts cannot and do not expect that any party can meet a standard of perfection. Nonetheless, the courts have a right to expect that litigants and counsel will take the necessary steps to ensure that relevant records are preserved when litigation is reasonably anticipated, and that such records are collected, reviewed, and produced to the opposing party. As discussed six years ago in the Zubulake opinions, when this does not happen, the integrity of the judicial process is harmed and the courts are required to fashion a remedy.

Our focus is on helping organizations discharge their duty to preserve electronically stored information and other documents. Absent an effective litigation hold process, an organization will be unable to meet its duty to preserve ESI and other documents. As articulated by various courts (including The Pension Committee v. Banc of America) the failure to implement a written litigation hold is gross negligence. A finding of gross negligence at the onset of a spoliation analysis is a surefire way to be sanctioned. The only question that follows is how much is the sanction.

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