Transcript Information Management - Circuit Court of Cook County

Judge Peter Flynn
Rich Lauwers
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The Duty to Preserve
◦ (if there is one …) and

Litigation Holds
◦ Creating and managing – and revisiting
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Spoliation
◦ 4 types: Plainly deliberate destruction; inferentially
deliberate destruction; “negligent” destruction;
accidental destruction (e.g., Miller v. Gupta, 174
Ill.2d 120 (1996))
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Over-Retention of Information
◦ (“We’re drowning in data, most of which we can’t
use because it’s too hard to find”)
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ESI is any electronically stored information; if
it isn’t hard copy, it’s ESI –
◦ E-Mail (average corporate user sends/receives over
100 e-mails every day)
◦ Websites (yours and those you visit; the site or your
ISP will have a history)
◦ Word/WordPerfect/Adobe/Excel documents
(different on the computer because of metadata)
◦ Thumb drives, DVDs, CDs, smartphones
◦ Personal laptops and other things at home
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◦ Facebook, LinkedIn, Twitter, MySpace, other social
media
 Not just what you post, but what others post
 Very, very leaky: Facebook says “only 0.06% of 1 billion
logins per day are compromised,” but that’s 600,000
daily hacking attempts, often using stolen credentials
◦ Databases (e.g., accounting records, bank accounts)
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Over 95% of all business data is ESI – and
never printed out
All – 100% - of your civil cases involve ESI:
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Unfair competition (employee’s e-mails, laptop)
Divorce (spouses’ social media, I-Pass, etc.)
Landlord-Tenant (landlord’s database/records)
Fender-benders (www.cyberdriveillinois.com)
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◦ Cases involving any banking transaction
◦ Personal injury and med-mal (hospital records, emails, online databases)
◦ Probate (might we use a decedent’s e-mails or
personal computer records as guides to intent or
undue influence?)
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Is the legal system causing
information users (persons,
businesses, governments) to overpreserve, through the actual or
imagined threat of “spoliation”
liability, damages, and sanctions?
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
“The general rule is that there is no duty to
preserve evidence.”
◦ Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 195
(1995)
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“… [H]owever, a duty to preserve evidence
may arise through an agreement, a contract,
a statute … or another special circumstance.
Moreover, a defendant may voluntarily
assume a duty by affirmative conduct.”
◦ Boyd, 166 Ill.2d at 195.
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“In any of the foregoing circumstances, a
defendant owes a duty of due care to
preserve evidence if a reasonable person in
the defendant’s position should have
foreseen that the evidence was material to a
potential civil action.”
◦ Boyd, 166 Ill.2d at 195
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
Boyd potentially applies to any kind of
evidence, not just the common sort of ESI.
◦ Martin v. Keeley & Sons, Inc., 2012 IL 113270
(concrete I-beam from collapsed bridge)
◦ Dardeen v. Kuehling, 213 Ill.2d 329 (2004)
(sidewalk bricks)
◦ Kilburg v. Mohiuddin, 2013 IL App (1st) 113408
(taxi and event data recorder)
◦ Miller v. Gupta, 174 Ill.2d 120 (1996) (X-rays)
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Boyd does not tell people how, or when, or
whether, to preserve information, outside the
context of “a potential civil action.”
So Boyd does not apply in everyday life – or in
everyday business.
◦ Unless the everyday routine includes lawsuits?
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Put another way: Boyd says preserving is the
exception.
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Corporations rely on counsel to instruct what
to preserve for “a potential civil action.”
◦ “We need to make a copy of all our email today”
 (Would a smart counsel say that? Why not?)
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Legal holds are developed with fear of
missing relevant information in unknown
repositories
◦ “keep all of our backup tapes in case we need to
produce them”
◦ RAID backup method causes problems
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The digital universe is more than doubling every
two years.
◦ In 2010, the world created more than a zettabyte of
information.
◦ Nine iPhones for every person on Earth
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Variety, velocity and volume of information
growth is overwhelming organizations of all sizes
and in all industries.
◦ Sources and types of information rapidly evolving due to
commercialization of enterprise IT
◦ In litigation, only 1 in every 1100 documents collected is
even deemed “relevant” – let alone actually useful
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As behaviors and patterns of communication
and collaboration change there will soon be
no way to collect every occurrence of digital
information.
◦ The difference between personal and corporate
computing is gone
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Organizations must address the information explosion in order
to:
◦ Leverage information value for agile decision making and innovation
◦ Facilitate productivity
◦ Establish appropriate corporate transparency
◦ Meet recordkeeping compliance requirements
◦ Cost-effectively and defensibly respond to litigation and
investigation
◦ Mitigate risk and cost of non-compliance or sanctions in litigation
LITIGATION AND INVESTIGATION IS NOT NUMBER 1
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Everything created, touched, saved and sent has an
end.
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Corporations need to know and manage their
information
◦ What is kept and more importantly what isn’t
◦ Where it is preserved
◦ How long it is retained
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There are policies and processes for responding to
litigation and investigation
◦ Management intervention by exception
◦ Preservation of materials likely to be relevant
◦ Each matter is reviewed periodically
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Reducing the cost of eDiscovery by working
harder faster
◦ Industry leaders focus on AI
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Responding to regulatory complexity
◦ Use the same tools to find what you need
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If you already keep what you must, then why
keep the rest?
◦ Mature information management programs help
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Competitive industries are creating
companies that use information management
as an advantage e.g. bio/pharma, electronic
Any organization that has written big
eDiscovery checks.
The cover of the WSJ is a motivator
◦ XXXXX fined $500M after email disclosure
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So how do smart people deal with litigation
holds?
◦ Don’t over-ask
◦ Don’t agree to over-comply
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
A very good source for guidance and
common sense is THE SEDONA CONFERENCE
COMMENTARY ON LEGAL HOLDS: THE TRIGGER & THE
PROCESS, available as a free download from
thesedonaconference.org.
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Remember the Rule 37(e) Safe Harbor:
◦ “Absent exceptional circumstances, a court may not
impose sanctions under these rules on a party for
failing to provide electronically stored information
lost as a result of the routine, good-faith operation
of an electronic information system.”
◦ BUT: This means you must have such a routine
system in place, well before the litigation arises.
(It’s not “routine” if you just created it yesterday.)
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Sedona Guideline 2 tracks Rule 37(e):
◦ “Adopting and consistently following a policy or
practice governing an organization’s preservation
obligations are factors that may demonstrate
reasonableness and good faith.”
◦ Again: Have a system!
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Mistakes happen. If they’re in good faith, a
claim of “spoliation” is unlikely to succeed.
◦ In Martin v. Keeley & Sons, Inc., 2012 IL 113270,
“While plaintiffs were installing a handrail on [a]
bridge” under reconstruction, “a concrete I-beam
used to support the bridge deck collapsed, causing
plaintiffs to fall into the creek where they were
injured.” The next day, the contractor “destroyed
the I-beam” by breaking it up with a hydraulic
hammer.
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The Supreme Court held that there was no
actionable spoliation, because IDOT and
OSHA had already inspected the site, IDOT
wanted the beam removed, and (at that point)
no one else had asked that the beam be
preserved. Keeley at pars. 15, 31.
The Supreme Court held that negligent
spoliation requires two “prongs,” relationship
and foreseeability:
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“Under the … ‘relationship’ prong … a
plaintiff must show that an agreement,
contract statute, special circumstance, or
voluntary undertaking has given rise to a duty
to preserve evidence.”
That’s not enough. “Under the …
‘foreseeability’ prong, … a plaintiff must
[also] show that the duty extends to the
specific evidence at issue.”
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The duty extends to the specific evidence at
issue only if “a reasonable person in the
defendant’s position should have foreseen
that the evidence was material to a potential
civil action.”
“If the plaintiff fails to satisfy both prongs …,
the defendant has no duty to preserve the
evidence.”
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By separately addressing the general “duty”
and its application to specific evidence,
Keeley makes clear that even an existing
general duty does not require preservation of
everything.
In the legal hold context, this means that the
judgment about what “specific evidence” to
preserve is not made solely by the person
demanding the hold. The respondent has at
least an equal voice – maybe a greater voice.
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Sedona Guideline 1:
◦ “A reasonable anticipation of litigation arises when
 an organization is on notice of a credible probability
that it will become involved in litigation;
 seriously contemplates initiating litigation; or
 takes specific actions to commence litigation.”
◦ This covers both an outside legal hold request (“on
notice”) and an internal self-assessment.
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Sedona Guideline 6 helps in assessing the
response to a legal hold demand:
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“The duty to preserve involves reasonable and good faith
efforts, taken as soon as is practicable and applied
proportionately, to identify and, as necessary, notify
persons likely to have relevant information [a/k/a
“custodians”] to preserve the information.”
Usually the party responding to the demand
does the “identify[ing]” and “notify[ing]”. But
the demanding party can and should help
assess “practicability” and “proportionality.”
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Per Sedona Guideline 7, don’t overlook “the
relative burdens and costs of the preservation
effort.” (Cf. Guideline 6, “applied
proportionately”).
This should be the subject of good-faith
discussion between the party requesting the
legal hold and the party responding. See
F.R.Civ.P. Rules 26(f)(2), 26(g)(1)(B)(iii); Ill.
Sup. Ct. Rules 201(c)(1), 201(k).
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Once a hold is in place, don’t forget about it.
Sedona Guideline 9 points out that
“Compliance with a legal hold should be
regularly monitored”
◦ not just to make sure it’s being followed, but also
to make sure it’s not being overdone.
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Sedona Guideline 11 is crucial:
◦ “Any legal hold policy, procedure, or practice
should include provisions for releasing the hold
upon the termination of the matter at issue so that
the organization can adhere to policies for
managing information through its useful lifecycle in
the absence of a legal hold.”
◦ In other words: The hold is abnormal. Normal is
managing information for the benefit of the
organization, not the lawyers. A hold blocks
management and substitutes preservation.
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It’s OK. Really.
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