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Relaxed legal hold processes, including letting custodians self-collect relevant data, have long been the de facto means of responding to the duty to preserve electronically stored information (ESI) in a legal action. This has always been a weak link in the e-discovery process, but two recent court decisions are making that strategy even more risky. This past summer, both the Second Circuit and Southern District of New York courts issued opinions addressing the adequacy of legal hold notices, self-collection, and ESI search capabilities. On July 10, 2012, the Second Circuit issued an opinion in Howard Chin v. The Port Authority of New York & New Jersey addressing the legal standard for failure to issue a legal hold notice for relevant evidence. The opinion limits the often-cited standard for legal holds announced in Pension Committee by Judge Shira Scheindlin, U.S. District Court judge for the Southern District of New York, in 2010.   Perhaps serendipitously, Judge Scheindlin issued an opinion three days after the Second Circuit opinion addressing the adequacy of preservation and ESI searches for Freedom of Information Act requests in National Day Laborer Org. Network v. United States Immig. & Customs Enforcement Agency, 2012 WL 2878130 (S.D.N.Y. July 13, 2012) (NDLON).   Both opinions provide a good summary of the state of the law for the “left-hand” side of the standard Electronic Discovery Reference Model (EDRM), including addressing the following points:

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