Name: Webinar: Fireside Chat on Complying with the Duty to Preserve ESI
Uploaded: 2025-12-09T21:16:03.971Z
Duration: 59 min 14 s
Description: Webinar: Fireside Chat on Complying with the Duty to Preserve ESI

Transcript for "Webinar: Fireside Chat on Complying with the Duty to Preserve ESI": Hello, everyone. Thanks for joining us. And Brandon, will need to come off mute, and he can share some, tidbits and housekeeping, for our webinar today. My name is Joshua Gilliland. I do ediscovery content marketing for Reveal. It's great for all of you to be here today so we can talk about the duty to preserve, what's been happening in 2025, and some other best practices. So, some general housekeeping, and so everyone knows, we have a q and a option on the right side of the screen so you can ask us questions. For example, we have a question for all of you. Who are you? Are you an attorney? Are you an ediscovery professional? Are you a records manager or you're a paralegal? Please please say what you do so we, you know, get a sense of who's attending today. Also, tell us what you would like to to learn today. We have a lot of good content with that, one one fun with that, one one fun question for everyone. Turns out your speakers are Star Wars fans. So a question, who's your favorite Star Wars character? And with that, I'll bring on our co panelists so John Jablonski and Jeffrey Wolff, who can tell us about their practice areas and what they do and you know John it's we've been friends for many years thank you for helping today. Could you tell everyone who are you and and how you're related to litigation and the duty to preserve as a subject matter expert? Sure. Of course. Well, first, I have to say that, I was a big fan of Boba Fett, but I think I've upgraded to The Mandalorian. So, you know, I think we gotta get that right out of the way. I'm a practicing attorney. I'm a managing partner of a firm of 80 lawyers. I've been doing, ediscovery before ediscovery was called ediscovery. I've been doing preservation, since the early two thousands, as a practice area. I coauthored a book called, seven reasonable steps for litigation holds of ESI and other documents back in 2009, I believe, is when it was first published. And then we recently updated the second edition through ARMA, and it's available on the Amazon bookstore, back in, 2023. I handle company I handle, data privacy, security, and preservation issues for companies, large and small. I do policies, procedures, and then I also help with investigations, help with scope of preservation, issuing legal holds, and then helping parties in litigation deal with those topics. Fantastic and glad you're here. Jeffrey, can you share some of your background for the audience? Sure, Joshua. Thank you. And while the Mandalorian is, his adventures have been fantastic, I I'm a classic, Star Wars fan, so probably it goes back to Obi Wan Kenobi for me. Original Star Wars New Hope was the first thing I saw in the theater as, tells you a little bit about my age. But, I, I'm a purse, the principal strategic sales engineer here at Reveal. My primary focus is on, the left side of the EDM. So I do a lot of work with, corporations and law firms looking for, hold notification management, early case assessment, content search collection, all of those things prior to ediscovery processing and review. I've been doing that for about ten years now. Prior to that, I spent another fifteen years in enterprise content management, primarily for corporations. So about twenty five years, in the, solutions engineering space. And happy to be with you both here today. Fantastic. So Joshua and I met when I started doing a lot of ediscovery blogging on my blog, Votai Law. Been been restarted blogging when I was at a law firm for over five and a half years. My blogging took a hit. That was also one of the changes in the post COVID world. I spent all day working on cases, and writing at the end of the day was something I just didn't didn't do as much of. But I've been writing again and really enjoying it, and I write a lot for Reveal. I too am a classic Kenobi man. I do have the FX lightsaber, and we're gonna have a rip roaring good time talking about the duty to preserve. So our agenda today is meeting preservation obligations with modern ESI. We'll talk about lessons learned from 2025. We'll get into avoiding pitfalls, and then we'll get into a little practical hypothetical that Jeffrey's gonna help us with in understanding how to execute a legal hold. And there's a term of art I want people to be aware of because I've noticed that there can be a collision sometimes. I know a lot of lawyers and myself included when what I say issuing litigation hold, that's the hold notice to, you know, your client describing the duty to preserve and what needs to be preserved. And then when the phrase executing loophole comes into play, generally mean collection. And there's a variety of ways that ESI can be preserved. So there's, two different terms of art. Some people just say collection. Now there's no pop quiz saying what's right and what's wrong, but those are general trends that a lot of people have. So we're here to talk about the duty to preserve, and namely, what is it? John, can you help us understand what is the duty to preserve? Sure. The the easiest way to understand it is when a party has a reasonable belief, a reasonable belief that mitigation is going to happen or government investigations happen, they it triggers a duty to serve. And those events, can take place prior litigation. They can take place in in a variety of ways. I like to explain it, in a way that people understand. When you're watching a movie, you know, when the police are knocking on the door and the bad guys are putting the contraband, you know, down the toilet and flushing it, obviously, those people had a duty to preserve the evidence, and and they knew that it was, going to be used, in litigation against them, obviously. But I think that's a good way to understand it. And, to help corporate partners understand it, it's really, is there a reasonable belief, that that company, has facts that would lead them to believe that they're going to be sued? And there's lots of case law that goes into the nuances of what that reasonable belief is or reasonable anticipation of litigation is. And I always try to put it in English and say, did did you know or or should you have known that your company was going to be sued? And that's taking a look at the facts. So, clearly, if folks are at the water cooler saying, oh my goodness. There was a huge explosion. We're definitely gonna get sued. You likely have a duty to preserve evidence. You know, if you get a threat to sue letter if the threat to sue letter use the uses magic words, we are going to sue you, then you have a duty to preserve. And and in our book, that I mentioned before, there's a whole chapter on trigger events and what those various trigger events are, and there's courts around the country that have looked at various facts and circumstances to determine whether or not there should have been a reasonable anticipation of litigation. Yeah. And there's ample case law about triggering events when a duty has been triggered or not. It's a factual question, and that can often be a knockdown, drag out fight. I've seen a lot of cases where it's just handled in a sentence. I don't know if that means that that's the trend now. John Jablonski, do you have any thoughts on is this something people are shortcutting and and it's quickly identified? Are you still seeing a lot of pro prolonged analysis? Yeah. I'm I'm not seeing in a rare case, you'll see a prolonged analysis. It's, you know, like that same famous Supreme Court, quote about pornography. Like, I know it when I see it. And it seems like courts, almost take an intuitive view that there was a duty to preserve that was triggered, and it doesn't get, fought over that much. But there are certain cases, and depending on the the parties, where it absolutely gets litigated. And it does as Joshua mentioned, it does come down to a factual question and what the facts look like. And so when I'm consulting a a client, we're looking at, you know, what what kind of evidence exists that could be used against us to establish the date of the trigger event. If there's an email that you're going to have to turn over discovery where someone is saying, hey, this event happened. I believe we're going to get sued. Well, you probably, triggered the duty to preserve evidence at that time. If folks are wondering, gosh. I don't know if we're gonna get sued. Maybe we'll get sued. Maybe we won't get sued. Maybe the duty to, preserve hasn't been triggered. It also goes to the nature of the parties and the sophistication of the parties. I've seen a lot of cases where, the duty to trigger was different for the defendant and different for the plaintiff, with almost identical sets of data. So let's say cell phone data or mobile phone data, the the duty to preserve was triggered by, when the plaintiff anticipated filing the case. But the plaintiff was unsophisticated and didn't really know, so the court really hasn't held that against that person. But the defendants, have been held in the same case to a much stricter standard because they were repeat litigants in litigation. They should have known better from the court's perspective. So it it's very fact specific, and it and you should take a look at it, from the perspective of if an objective third party was looking at this evidence, do they believe that we had a duty to preserve evidence, and was it triggered at that time? Which brings us to determining the scope of the duty to preserve. And, you know, questions for for both of you on this. John, what have you seen, lawyers do in determining the scope? And then for Jeffrey, how do you enact that? What do you do, after after a lawyer comes to you and says, this is what we need to get? And so, John, can can you help us understand? Yeah. I think this is I think understanding the scope of, with respect to what you're going to be preserving is really important. And a sophisticated, lawyer or sophisticated party could do themselves a big favor by properly analyzing the scope of the duty. I'm sorry, the scope scope of what you're going to be preserving. And it's and from my perspective, it's very interesting because you have to take a look at the court cases, and they talk about the duty, to preserve scope of what you're going to be preserving is much broader than what might actually be produced at evidence in trial. I think it's really important to understand that. Court cases talk about, the scope of preservation being related to relevant evidence, potentially relevant evidence, and under the federal rules and under state court, those are very broad definitions. And so I have a lot of clients say, well, we're just gonna preserve everything. Well, depending on the size of your organization, and and Jeffrey very appropriately shook his head no, that that's that's not the greatest decision because it can lock you into future litigation if you if you preserve very broadly. It also, goes to what you're eventually going to be tested on from a from your opponent's perspective or for the from the court's perspective. So the the case law talks about preserving evidence related to the facts of the case, the key custodians in the the case. And so to the extent that you're able to map that out and and sketch out what that scope is, I think it's really important. So if you have three or four key custodians, you have all of the, a quick you know, the devices that they use, the data that they use, the systems that they use at work. You you wanna try I'm I'm a big proponent of keeping the scope as narrow as you're comfortable, defending, and having a defensible scope because it's going to have and and when we turn it over to Jeffrey, you're gonna hear that it's gonna have occasions down the chain of preservation and down, of collection and production and things like that. And so you have to be looking at almost what I call sometimes like a law school problem where you're looking at the facts of the case, what we know about the facts of the case. I try to do a preliminary investigation to understand what, where, when, how, why of what's involved in in in the case itself. And then almost by a process process of elimination, ruling out certain, aspects of the computer system. Sales database and the case doesn't involve sales at all, well, why would you put that sales database on hold if it's not relevant to the case at all? So you're trying to identify what the reasonable is. And then it's also really important for the litigation hold notice of what you're communicating to your employees internally, with respect to the objective of preservation, operation is going to be and what what you're going to be preserving. And then we can come back to it later as we discuss. There's more nuances than that, but I think that provides a good overview. Thank you, to. what Yep. Jeffrey, when someone says, hey, we need everything. Yeah. Do you how do you talk them off the cliff? Data equals risk. Right? So the more preserved data, the more risk. So to echo what John was saying, we typically and, obviously, we we are a technology firm. We're we don't provide, legal advice. That's what we rely on lawyers to do. But, but, you know, as it comes to best practices for litigation holds, it's typically best suited to identify specific data sources, specific custodians, specific date ranges, specific keywords if you wanna get to that level of granularity. And the way you get that information, you know, to John's point was, legal hold notices is the first step. More importantly, I like to rely on custodian questionnaires and surveys. So when you do send the notices out, engaging them with a questionnaire, hey. Where what data sources do you use? What systems do you use? Where is that data stored? What other relevant sources do you think might be involved in this case that we should be targeting? Making sure organizations have a proper data map, and that obviously stems from an information governance policy within the organization so they know where all the data is located. We we often talk to corporations that are dealing with shadow IT applications. Right? Slack nobody told, no one told IT that we're using Slack and a few of the work groups within the company, but they went ahead and started using it. And now. that is a discoverable source, from a legal standpoint. So understanding those locations, all the way down to apps and cell phones. Are you are you using are you using certain applications on company issued devices or even on personal devices that you're using for for for company work that may now be relevant to the case? Yeah. think it's like sorry, Joshua. no. Nope. No. Go go right ahead, John. No. I was gonna just jump in. I think from from the the lawyer's perspective, the custodial questionnaires are key, you know, whether the law firm does the questionnaire or someone by under the direction of the law firm does the questionnaire. Again, when a preservation, when preservation is challenged, a court will examine this process that we're talking about right now. What did you do to try and determine what's relevant or potentially relevant to the case? How serious did you take it? You know, was it me and Jeffrey sitting in a conference room and guessing, you know, what's relevant, and putting it on a legal hold notice, or did we interview custodians? Did we have a questionnaire process? How I hate to put it this way, but how serious do we take our preservation obligations, and how serious were we discharging our duties? And, you know, some cases, speak directly, and it's a product liability case. You could probably anyone on the call who deals with products liability could understand the the the scope of what that reservation is versus a contract case versus an employment case, etcetera. Yeah. The there's always a surprise factor that can happen with litigation. I had a case where, like, I went to the client's physical location. We had a good meeting, went over a checklist, asked questions. Give them we then get special interrogatories and request for production, send them to the client, and we're having a call going over those requests. And in in response to one of the requests, the client says, oh, yeah. That that would be here. Identifying a data source that's never been discussed before that I definitely asked about, but, like, they didn't mention, in response. And since we were still responding to discovery, like, we dealt with it. Like, it wasn't like we needed to amend answers or anything serious. But again, it was a surprise of, you know, they they missed it. This opens the door for, you know, proportionality and we can have a full hour about proportionality but, you know, this is just balancing analysis on what is proportional to the needs of the case. And if you end up having to argue proportionality, that gets into proving facts. You know, you can't just go into court and say, your honor, it's expensive. Period. End of discussion and hope that the court's going to agree with you. You need to say there's 75 custodians, there's x terabytes worth of data, it's going to take this many months to to deal with and cost us x amount of dollars. Like, the courts wanna hear those type of specifics as opposed to saying proportionality like it's a magic word to ward off having to collect data, and, like, that that's just not how it works. But that can be a full hour by itself. So let's just highlight something's gone wrong, like and we have rules for that. So we just celebrated the ten year anniversary of the past of the, of the twenty fifteen amendments to the federal rules procedure being enacted. So, like, we have the lead up, you know, December, was fifth twenty fifteen comes around or was it December 4, whatever, early December, and they become enacted. And we then get rule 37 e, which gets into the road map on how to deal with lost ESI. And while we don't need to relive the unpleasantness, you know, John, what was it like in the days before rule thirty seventy? Yeah. Well, what's interesting back in 2003, I think I'm old enough to say that, rule 37 e was first enacted in an attempt to curb wide ranging discovery in this new exciting land of computers, that lawyers were finally catching up to. And so in in mostly large litigation, millions of dollars were being spent on discovery, like, multimillions of dollars. I remember reviewing cases back in the early two thousands where courts were awarding, millions of dollars in in fees, related to discovery, as part of a sanction, and it was ridiculous from my perspective. And so we had a problem of overpreservation, meaning companies were keeping more data than they needed to, and the courts were requiring the production of more data than was needed to. And then to compound matters and really where the fear set in is we had a series of cases where mere negligence was sufficient to sanction a party. So if you were a company and you preserved a thousand laptops and you lost one laptop, you could be sanctioned for the loss of that one laptop. Regardless of what was on it, regardless of whether a backup was on the server, it's just there was an intent, that was assigned to you, to try and prevent, that use of that laptop in litigation, and it didn't it didn't go into an actual, what I would say, culpability analysis. And, and so there was basically panic in corporate America with respect to the preservation, obligations. The federal rules were amended in an effort to try and minimize, the impact of technology. And, usually, at the first run of it, it was taken the wrong way, by the bar and taken the wrong way by judges, and the sanctions, decisions multiplied. Fortunately, in 2015, the Federal Rules Committee passed, rule 37 e and really provided a uniform approach, to sanctions in the ediscovery context. And prior to 2015, you had different circuits and different local courts with different requirements both for we were talking about the scope preservation before. Different courts had different ideas of what the trigger event was, what the scope of preservation of was. Different courts had different ideas of, sanctions for negligence or, something was something more than negligence required? And nothing really unfortunately, from my from my perspective as a technologist, nothing was really getting to the heart of the matter of what can, you know, what can you actually preserve, what are the common of preservation, and how can a well, intention corporation avoid sanctions if they lose a laptop or they lose data? Because anyone that, spends time in the discovery space, you're it's guaranteed that you're gonna have an issue. It it's it's the the odd case or a very rare case where eDiscovery goes smoothly. So how can you protect your company? And then rule 37 comes into play, and we can certainly talk about it more. Yep. Well said. There's, a six part test that came out around 2016 that was how to do rule 37 e analysis. Some courts have expanded this to, like, eight or nine steps. Some have truncated it down to three, but they're basically asking the, essential questions of, did the party lose the ESI? Was there a duty to preserve? Did the party, fail to take reasonable steps to preserve the ESI? Can the ESI be lost, restored, or replaced? Is there prejudice? And if there's, you know, any of the above, is there the intent to deprive? And the intent to deprive analysis gets to what John was saying with, you know, some culpability, as well. Now we're gonna get into this with some of the recent cases, but we're beyond just email at this point. We have modern ESI and Jeffrey Wolff, like, this is what you do, man. Can you help us understand what is modern ESI? Yeah. So attorneys have been, for the longest time, very focused, on electronic communication as just primarily email and loose documents. And that, if you ask most attorneys, that that is the bulk of ESI. However, the fundamental shift in the modern workplace is that most work now occurs on enterprise communication platform, and far less of it occurs on on email. So what I mean by that is you're doing a lot of your work on Microsoft Teams or on Slack. And so that communication is almost more important in many respects than some of the email messages that are being sent within an organization. So Modern ESI, adds that whole enterprise chat communication, but it also expands it well beyond that. Ephemeral messaging, becomes a problem. I was, I was talking with a an attorney at a conference a couple years ago, and she was working on a case that involved, sensors in cement that were measuring pressure. And that was, those the sensor data had to be collected for the case she was on. So the whole Internet of things, what temperature was the refrigerator running at? What, what speed was was the car heading? And what are the to the what other telemetry of that car was was recorded as part of the case? There's a lot more electronically stored information now that simply will well beyond the e the email world. And that's what we're dealing with, and how we address that both from a preservation standpoint and from a collection standpoint There are folks who highlight modern attachments. Can you explain what that is? is, you know, we used to when we send an we used to send an email message, we would compose a word document. If you're in the the Microsoft ecosystem, you would physically attach a copy of that word document to the email message. So, from any discovery standpoint, when you collect that email, it collected the attachment as well. That was all well and good. But as as all communication moves to the cloud, the what the large organizations like Microsoft and Google have moved to is a system where the the document is already stored in the cloud. It's stored in the Microsoft ecosystem. It's stored in OneDrive or SharePoint. In the Google ecosystem, it's stored in Drive. And when you attach, what you're really just doing is linking that document, that collaborative document to the email message at the time it was being sent. That's what's referred to as a modern attachment, and it introduces a whole host of challenges. Like, what was the status of that document at the time that the message was sent versus how was that document changed after the email was sent, and what version do you collect relevant to ediscovery? John, what have you seen in cases, dealing with modern ESI? Yeah. Well, I I would concur concur with what Jeffrey is saying. The the the metadata, which he didn't use that term, but that's really what he was talking about is that's really key, in the collection process and then in the negotiation and production process among the parties. And so having metadata that references all of those attached modern attachments as we've defined in this presentation is really important. So battles over, ESI protocols and what's going to be produced, how many fields metadata are gonna be produced, and are you gonna get the 25 versions of that document that we're talking about as an example, or you're just gonna get version on the date that the email was sent? Are you gonna get the, you know, follow-up versions? So the the scope of production, which goes back to our earlier discussion about the scope of preservation, becomes really key in the, parties' interactions, among the lawyers, educating the court about what's going to be produced, and a lot of battles happen there. I think the other important, thing to understand is enterprise at first enterprise versions. Because of the new way everyone's working, people are using messaging apps and ephemeral messaging apps. They're using all sorts of applications that the IT department doesn't know about, which goes back to our custodial questionnaires. So, you know, you'll have someone mention, unfortunately, you know, in case law, a new type of app or a a newfangled online whatever, we're not even talking about AI yet, tool that, that has all kinds of data that's relevant to the case, but no one thought to collect it from them. No one thought to preserve it in the first place, and now it's the the subject for sanctions motion. So so to me, you know, there's lots of cases talking about different types of data and and what how important it is and whether or not it should have been preserved. One of the cases that I shared with Joshua recently was talking about a taser, and the taser records each time it's deployed. And one of the incidents of the deployment that was relevant to the case was missing, and so the court was determining whether or not that was sanctionable because of the the missing taser record, which you wouldn't even think about. And then I'd be remiss if I didn't talk about AI. The court system hasn't really caught up with, AI discovery yet. I don't think lawyers want AI discovery yet, but it's going to start happening, and start happening rapidly. And there's there's all, like, a laundry list of things off the top of my head. You have the prompts. You have the conversations. Then you have the memory that the AI has, for different agents, that you set up or even the memory that your AI has if you tweak it. I follow a bunch of people on Instagram that tell you how to tweak your AI. So the AI has a memory. So if you wanna sound more like Winston Churchill or if you wanna sound more like another famous person, that's in the memory of the AI and all of the instructions that you give to that AI. And so there invariably, there's going to be a contract case where, you know, the decision to give a loan or or or enter into contract is going to be left AI even though the individual says I made the decision. So just well, the server you're gonna handle that. Where I was going with the in furrowed and thorough data before is, a lot of people may think that that disappears within seven days, but depending on the enterprise system, you know, Slack could be kept for a year, could be kept for three years, even though the user only sees it vanish in seven days. Same thing with AI tools. You really have to understand where at the enterprise it's capped and who how long it's capped. And then I help companies build policies and procedures around that. So, again, you know, going back to your rule 37 e, you wanna demonstrate that if you don't have something, you don't have something for a reason, and here's our policy, and here's why we didn't have a duty to preserve it at the time that that data disappeared. Yeah. Which well said. Just because it's weird and you haven't dealt with it before, you still need to preserve it. And this is one of my fear points for attorneys because you have lawyers with great experience that they're very knowledgeable about their specific practice area, that they can write amazing motions, that they know how to do a cross examination. They are at the top of their game and they are knowledgeable, but some weird ESI that they've never dealt with before can ruin their day. And that's that's a fear that I have. The way to answer it's to help people understand what's there, because I don't want anyone to, you know, end up in a bad situation because they didn't understand something funky that they've never seen in their practice area before. Can I can. I jump can I jump in on this? I'm I'm gonna use it I'm gonna throw out a term trust but verify. So, you know, when I when I talk to clients, someone attending this this presentation may be in a certain department at their company. They think that IT is preserving something, because they had a meeting three years ago and IT said we're gonna preserve it. But, trust but verify. You know, I wanna understand who's who is, you know, how that how that database or how that unusual ESI, as Joshua mentioned, performs and how it's how it's created, how it's stored, how it's destroyed. And then I want to understand, you know, who's in charge of that, and then I want to understand what we need to do to actually preserve it in a in a reasonable manner. It's it's really important. So I just wanna jump on that. Yeah. Just to add on top of that, actually, you know, as as new software manufacturers build solutions that are used in in the corporate world, their first thought is not ediscovery. Their first thought is not compliance. So as new tools are built, what we often find in, at least in my world, is that compliance is an afterthought. And so there may not necessarily be in some new applications, a way to do that kind of preservation or or easy way to collect that data. That does come eventually when they get when they seek adoption. But just keep that in mind as new tech emerges. It's not always the first thought of those manufacturers to build a way, to manage eDiscovery compliance after the fact. Just adding on to something John said earlier about, generative AI and any prompts, I will tell you that while lawyers may not be thinking about it yet, technology companies are already starting to. So we are already, and I'm sure our competitors are as well, working on ways to be able to capture information from the large, generative AI platforms that are in use by everyone today. Well and and I would just dovetail onto what you're saying about cloud cloud locations. Right? I I always I have a lot of clients that will have called over the years, and they're like, well, that's in the cloud. You know, we don't we don't have an obligation to go get it. Like, well, it under the under the case law, is it in your possession, custody, or control? Those are the, you know, those are the legal buzzwords. And, you know, okay. I don't possess it, and maybe it's not I don't I'm not a custodian of it, but it's definitely under my control. And there are court cases where the courts examine the contractual relationship between the cloud provider, whatever the app is, the storage is, and and the company, to to make a factual determination. Yep. You did control it. And for with all cloud applications, if you have access to put information into it and you can get information out of it, 99.9% legal certainty that you're gonna be required to preserve out of that system. And that's a great doorway to talk about some of our case law examples. So we're gonna have some case law, and then we're gonna get into, like, a practical demo on how to get the data. So first up, this case is a slip and fall incident at a, like, department store. It comes up during a motion to compel. So the plaintiff claimed that they tripped over a hanger, The security footage was reviewed by the defendant as was, like, some email of and but neither of those items, the email or the video that showed the incident were saved. And then the defendants bring a motion to compel or excuse me, a, motion for summary judgment saying, like, hey. No liability for us. And the court was, like, not cool, about that because you don't get to lose something and then say, we want a motion for summary judgment. We wanna win. And the the court said, uh-uh. So there was no intent to deprive because this was just a big whoopsie. But that video was important, and you can't just have the investigator for the defendant say, oh, I looked at it. It's cool. Like, that doesn't work. So there's great rule 37 e analysis. It's lost. It it was would have been very important. And the appropriate remedy is to say that this is an issue of material fact, thus no motion for summary judgment for you, as the appropriate sanction. So, like, that's how that one ends. We then get to a weird one where we have text messages between a husband and wife that's relevant, and you have, the, opposing party say, like, hey, we want these messages. Well, first off, they're protected by the spousal privilege. Secondly, okay, the husband deleted text messages on their phone, but that doesn't mean that it's lost, that there are other sources that you might be able to get it such as the wife's phone, such as if this was an iPhone, there could have been an iMessage backup. There are other ways to to verify that there was this data before saying it's lost. So the fact that it was a claim that was lost was just speculation as also its importance. And also, let's not forget, it's already privileged because it's between husband and wife, so the spousal privilege is at play, as well. So again, like, funky way that these these, cases are happening. So which then brings us to a, weird case with Discord. This was if they these Discord cases have been happening, but this was the first one that I've read about where the defendant sought sanctions against the plaintiff for deleting post on discord. The plaintiff argued that they did not have a duty to preserve what was on discord. That argument did not win. So this is what the court found that the ESI should have been preserved, that the ESI was lost, that the plaintiff deleted the ESI and not all the ESI could be replaced or restored through additional discovery, and the magistrate judge found that the post, deleted were done so with the intent to deprive. So all of that's bad, and there's an adverse inference instruction and attorney's fees that are awarded. We then get to, a Slack case, and this is from 2023. It is absolute weirdness with this one because you have dispute over Slack communications. This dealt with an app that, was to find roommates and in rooms to rent, and that the allegation was that the app manufacturer had fake reviews to bolster people looking at their their app. Well, the court finds that the defendants admitted they did not preserve the Slack communications. They were very cheap fish in explaining what happened. It was very much a whoops. We're sorry. And the question then is, was this done with the intent to depart? Was there a cold state of mind? The court actually ends up piercing the attorney client privilege on litigation hold communications to see what was communicated to the client about preserving evidence. All of that is terrifying as an attorney because the idea that your litigation hold communications get pierced is something that none of us wanna be dealing with. So, like, that that'd be scary. So those are just, like, tidbit of cases. There's there's tons of them. We have some articles that that have been written that that summarize a bunch of these on what's happened. But where where this brings us to is, like, best practices for issuing the hold and then executing the hold. Joshua, do you have some best practices for issuing the, hold? And then Jeffrey's gonna show us how to execute it. Yeah. So the the first, best practice is obviously reading my book seven steps for for for legal holds. And but but, you you know, they I think all of the steps that we've been talking about, maybe we haven't done it in in a in a numbered way. You know, you have to identify the trigger event, determine whether or not you duty. That's step one and two. You have to define the scope of the legal hold. That's gonna be the, you know, in your legal hold notice that goes to, your employees with respect to what's going to be hold, held. And then you have to implement the legal hold, and we haven't really talked about that. So implementing is both going to be the method of preservation, you know, preservation preservation in in place versus, collection, and I can leave that to Jeffrey to address specifically. But another important step is periodically, you have to, what we call in the book, enforce and examine the legal hold. We call it enforce because just because someone gets a legal hold notice doesn't mean they see it or they do anything in response to it. Some some companies ask for an acknowledgment of legal hold. Some applications require an acknowledgment of legal hold so that you could demonstrate to a judge. Not only did we send this out, but these people actually received it. And then, contacting the custodians and just saying to them, hey. Did you get this legal hold notice? Are you preserving, not deleting anything and making sure that they're actually honoring the legal hold? Because your custodians are likely gonna be deposed, and they have to be prepared to testify that you received the legal hold notice and that they abided by the legal hold notice. That's very, very important. And then when I say, the, force examine the effectiveness, that's talking to the IT department. You know, did they really copy the legal hold? Did they really turn off email or or implement a a hold on different systems, take basis, things like that? That's a step that's often missed, and lawyers skip bit by that step a lot. And then modifying the legal hold if it's necessary is six step. Modify but what I mean by modify is if you're interviewing a custodian and we've missed the database, which we've already talked about in this presentation, we gotta add it to the legal hold. We're we're talking about finding the scope of legal hold. If you, get a discovery requested from your opponent and ask for wacky piece of evidence that was not part of the scope of your legal hold, Well, you may not have had a duty at the time because you didn't know it was relevant to the case. Well, now you know it's relevant to the case. You should modify your withhold and start preserving. So you may have lost data before your initial implementation, and you may be, in a very defensible position. But if you don't modify your legal hold, add that information to it, then you could be in trouble with that. And then at the end, which, you know, we haven't talked about at all is seeing your legal hold in returning that evidence to more, records management or information management destruction cycles. Cool. Thank you. Jeffrey, help us how do we do this? Like, if. if there's email, if Slack, if there's Dropbox, how do we do. this? John is spot on. Okay. I think there's one step that come that predates some of that stuff, which is understanding what the, information governance rules are for the organization for the various data types that will be, relevant to the case. Right? With that in layman's terms, what that means is understanding retention and destruction policies. How long does your organization keep email? How long does your organization keep Slack chat? And understanding that will help you determine what has to be preserved. So that's usually a conversation with IT. The the way that starts that process starts, we're not not where we're gonna show today. We're gonna but Reveal has a solution for that. We call that Reveal Hold, and that takes care of sending the hold notices out, tracking the custodian responses, automating that workflow. And whether you use our tool, somebody else's tool, or any tool, what's important to the courts is that there is a defensible process that you can point to. We didn't just send emails out. We actually had a process, and we educated our our employees on how we deal with a legal hold. We sent a a notice out. We know that they read it. They acknowledged it somehow. We tracked that acknowledgment, and that you can show that in court. Now, obviously, using a software solution to do that is a bit more defensible because it is an automated process, and it has its own auditing, to to back that information up. Vinted, But I can I just jump in on that real quick? There are cases that talk about the, management and direction of litigation holds or legal holds needs to be done by an attorney. Whether it's in house attorney or out outside counsel, there has to be some direction. Now if you have a person inside your organization that's gonna handle legal holds and they have no legal background whatsoever, as long as they're directed by an attorney at some point in time, that's really what the courts care about. I just thought that was a really important point to add. That is. That is. And most and most corporations that do have a a a managed legal hold process, whether it if it's not the attorney writing the hold notice, it's a paralegal under the direction of an attorney that typically does it. You're absolutely correct. And so but once that once that process is is kicked off and amended as John Jablonski mentioned, because you do have to amend it if new information surfaces, then there's an object obligation to preserve. And he touched on something I wanted to reiterate, which is that there's really two types of preservations out there. It is not one type of preservation. You can preserve data in place or you can preserve by collection. Every pretty much every data source falls into one of two categories. Some systems support in place preservation, which is the simpler of the two because you don't have to pit lift and ship as we call it in the industry. We don't have to move the data around. Right? For example, if you are in the Microsoft three sixty five ecosystem and that is the only content that you need to preserve, you can simply create a preservation in place for all of that data. And, you can designate which custodians, which gate ranges, which of the data sources. Are you just talking email, OneDrive, Teams, SharePoint, what you want to preserve? And it it is locked down. It will not be overwritten by established retention policies that IT has implemented. But there are a lot of data sources that relevant in corporations that don't support in place preservation, and those are the ones that need to be collected, to be preserved. And so that's a tool where a tool like ONA, which is also a real solution, comes into play. And I think, Joshua, that's what we're gonna actually take a look at briefly. Right? Alright. So so just to give everyone a level set for everyone, this is, an application called ONA. It is a cloud based software as a service solution. So SaaS product, that reveal manages and manufacturers. And, what this allows an organization to do is to connect to all of their disparate data sources, because most organizations have dozens, sometimes hundreds of different applications, that could be involved in a litigation. And so that is a very time consuming and siloed effort if they don't have a solution that allows them to connect to a lot of those disparate sources, from one interface. So I am able to establish connections, to a variety. Here, I'll show you real quick. Just give you a little flavor for the audience of what you can connect to. You can see here there's what we call, these are out of out of, no code connectors. So these are out of the box connectors that the that come with the application that allow you to connect to Microsoft three sixty five ecosystem, the Google Workspace ecosystem, but also other communication systems like Slack, enterprise content storage locations like Box or Dropbox or, Amazon s three, video communication platforms like Zoom, very niche specific applications like Confluence and Jira. Those are Wiki and help desk applications or ticketed applications, for software companies themselves. But all of this is designed to allow you to easily set up a, a collection. So when you need to execute using Joshua vernacular, if you need to execute a litigation hold for a data source that you can't necessarily preserve in place or even if you don't want to preserve in place, I've I've worked with a number of corporations. We're like, we don't really we don't like to trust preservation in place. We'd rather have a copy of the data stored somewhere that we know that it's there. We know that we can search it. We can do something with it as need be. So we touched on Slack, so I'll I'll use Slack as an example. What Ona lets you do is come in here and say, I'm going to connect to my Slack instance. I'm gonna create a one time synchronization. This is a snapshot. I want a snapshot of data that is relevant to this case. I'm going to provide a date range that is a a sync start date and a sync end date for, so I'm not over collecting or over preserving data, which is also a challenge as we discussed earlier. And, I'm going to go ahead and let's say I want to collect all of the data from August 1 through today. I'm gonna continue in. One of the nice things about ONA is that IT can set ONA up for an organization and then hand the keys over to the application, to the legal department, to the HR department, to the compliance team. And they don't need the credentials to each of the data systems because IT has already authorized ONA to talk to those systems. So they have the access that is needed without needing the credentials to be able to collect data for the purposes that their business legal business requirement is. So I need to come in here and I need to do to need to do a custodial collection of messages in Slack, and I can target certain users for that custodial collection. So let's say I come in here and I wanna collect from Abby and Alexander, and I can pick my people or I can filter them. I can upload a list of people. I think you get the point there. And then I can identify which data sources or which workspaces in Slack I want. So let's say I need the, finance and marketing channels for Globex Corporation because those are relevant as determined by our questionnaires in our in our legal hold notices. Those are the relevant channels that we want to involve in this. Instead of preserving everything, we're gonna target what's necessary. Finance and marketing, we'll probably grab the general channel just in case anybody put some random communication in there that might be relevant, and then I hit done. And that's literally the entire process of forming that collection. Ona then uses the established APIs, that it is provided by Slack to make that connection, an authorized connection, collect the necessary data, and in more importantly, the metadata for it as well, and then make that searchable to the end user. So now once that sync is performed, I can come in here and type in keywords that are relevant to my case, and I can sort through the hits that come back from that data. And the nice part about this is, I can collect from a variety of data sources all at once, have them in one workspace or filing cabinet, and then run my search across all of those data sources at one time. This is really not possible if you're individually, indexing or collecting from each data source separately and then trying to put all of that into ediscovery package. More importantly, this is gonna reduce the amount of data that you're sending downstream into ediscovery because you don't have to, you don't have to send things that can be eliminated that are unnecessary, to the case. But this also allows the them to review that material before it goes into a new discovery platform or goes to outside counsel or goes to a vendor. So this gives them the opportunity to actually put eyes on the on the content from their own instance of Ona, and make a determination. So for example, you can see here, this is a Slack communication in a private channel, which, the software was able to collect up. It hit on my keywords, so I was able to look at it. But I can actually read it in a natural way. It shows me, you know, the threaded conversation. It shows me inline images. It shows me attached documents that were, added as part of the thread. But more importantly, it also shows me the edits and deletions that rec occurred during the conversation. So where messages were changed or where messages were posted and then deleted, I can see that because Slack retains that metadata and allows Ona to pick it up and and display it like this. All of this is, of course, thing hashed or as we call an ESI world fingerprint digitally fingerprinted so that we know it's, unique. It's maintained its chain of custody from the original collection point. We have all of the relevant metadata. And then the the, the users in legal are able to actually, if they want, even do some tagging here or add some additional meta a field of metadata to go alongside the collected metadata, which can then be pushed downstream into ediscovery if it gets that far. Let me pause there if you guys have questions or want me to show something specifically else. I? don't have this I don't have a specific question. It's. a very, very comprehensive overview is what I'll say. So it's a and it's a it's a very good it's a very good tool for, you know, what you're looking at and and trying to understand prior to full blown preservation, you know, what you're looking at. That's I think, that's a point that we haven't really discussed, discussed yet or touched upon is it's part of the determining the scope of the hold. If you're able to use a tool like Anna to identify, you know, what sort of databases are gonna get hit or what sort of tools are gonna get hit, based on the custodians that are involved or the, information that I think is relevant to this particular case. It gives you some idea, you know, is it going to be hundreds of, gigabytes of data? Is it gonna be ten ten gigabytes of data? What's it gonna look like? So that's very powerful, to understand what you're. doing as far as the scope of the hold and then you're discharging your preservation obligations. So one question that came in on a specific, can Ona do bulk redaction slash tagging? Those are two different functions. And. so I believe answer them in reverse. I'll say, yeah. yes. You can do tagging both individually and in bulk. No. You can't do redaction in ONA because ONA is not really, at the end of the day, not meant to replace any discovery review tool. Right? It is meant to provide that ECA or EDA, early data assessment function within the case to collect up the data from the various data sources, let you call down what you actually need, and then move only what is necessary to push further downstream into any discovery review platform where you will be able to do full on redaction work and and export. It's the, it's it's getting it's not it's it helps you get surgical, Yes. and then we actually have to do review for, like, you know, personal identifiable information or, you know, other things that might need to be redacted. That's where something you know, when you discovery review application comes into play such as logical. So, you know, being able to, you know, do that hand off from collection to review. There a lot of people do get, you know, fixated on that on the differences between the two. So, And if we under a fact, Joshua, since you mentioned Logical, I'd be remiss not saying that we built integration between ONA and logical for that very purpose. So once you've collected all the data up and identify which documents are necessary, you can just use a a built in export function to push the data the relevant data right into a logical case for further review. Yeah. Absolutely. So, as we're we're answering questions, we have a, you know, a couple out there. I do wanna highlight that, we do have some recent blog posts on ONA and, the duty to preserve and that we did last week. So I'm gonna put that into chat with the link for everyone. And we'll also I I'm a fan of John's book. Like and the second the most recent version has just come out that's available on Amazon. I'll post a link to that if you wanna check it out. But, yeah, it's it's a good book. And I would recommend, reading it, because there's a lot of good insight on the deep reserve in there. So I just posted that link in the chat. So we're we're at the end of the hour. Thank you all for attending. It's end of your time. People are super busy. I wanna thank John. It's and and Jeffrey because it's nice to get to hang out with everyone, and be able to talk about these issues because, again, this is just the tip of the iceberg. There's so much more that we could we do an hour on proportionality, which, you know, just be just in it of itself. So, again, I wanna thank our our speakers and all the attendees because you all you're all busy, and it's it's a very you know, some of you have end of your billing. Like, it's it's a very busy time. So again, thank you all for spending the afternoon with us. And with that, stay tuned for January 20. We'll have more. Take care now. Thanks, everyone. Thanks, Joshua, Jeffrey. Thank you both. Thank you, everyone. Be well.