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	Feature Article: Managing Successful Litigation Holds
	Litigation Minute: Private Healthcare Information – Is It Secure?
	News & Events

Managing Successful Litigation Holds

In order to prevent inadvertent destruction of relevant information and a later claim of spoliation, a company or party has a duty to issue a litigation hold upon "reasonable anticipation of litigation." The facts giving rise to this duty will vary from case to case, but once the duty arises, there are certain steps that should be followed to ensure the hold is successful.

Circulation: When issuing a hold notice, the first step is to determine the appropriate person to draft and circulate the notice, especially if the matter is sensitive. In certain circumstances, instructions regarding the types of information that must be preserved will be required to ensure proper preservation steps are taken. Once drafted, it is important to document when the hold notice was sent out and who received it. For example, it may be prudent to require signatures on a response or acknowledgement stating the recipient received, read and understood the hold notice.

Enforcement: Merely circulating a litigation hold notice will be insufficient to meet the preservation duty. A company must also take steps to enforce a litigation hold. For example, reminders should be sent based on a cycle or a reasonable length of time. Companies may also need to adjust or refine the hold list over time, especially during the discovery phase, which may take several months or even years. If the scope of the litigation hold increases, additional users will need to be informed of the litigation hold (this may be a good time to remind the original set of users to continue to preserve their records).

Counsel Obligations: Inside and outside counsel must also be aware of the hold notice, comprehend what it covers and understand the policies and practices of the company. Simply stating a hold notice was issued may not be enough; understanding how the company stores records and knowing what efforts have taken place to preserve data are key components to the litigation hold process. Counsel should continue to actively educate themselves regarding the status of the litigation hold and also confirm with opposing counsel that they have taken appropriate preservation measures.

Challenges: When a company is involved in numerous pieces of litigation, the same custodian or data could easily span multiple matters, which can be confusing and difficult to track. Large companies that are frequent parties to litigation must review all related holds before removing data from preservation. If an employee terminates employment with a company, that company should check to see if they are on preservation before re-imaging and reissuing their computer.

If you are not sure whether you're taking the correct approach when working with litigation hold notices or whether your plan is complete, have an expert review your plan. It's better to be prepared and have peace of mind than to look back and find you've missed critical steps.

Special thanks to Karen Andersen, Kroll Ontrack ESI Consultant, for her contribution in writing this article.

Litigation Minute

Private Healthcare Information – Is It Secure?
As healthcare facilities store, review and manipulate some of our most sensitive personal information, data security is a major concern. Not only are healthcare facilities rich with the information needed to fabricate identity, data under their control may often times be that which is sought out most heavily by wrongdoers attempting to illegally collect payment. One need only look to recent newspaper headlines to learn of the vulnerability that can arise when a healthcare facility is unprepared to adequately deal with data security.

Lack of awareness within the healthcare industry negatively impacts efforts to reduce the risk of a data breach. Regulatory loopholes and concern with compliance of legal standards as opposed to risk mitigation are just a few of the causes of unpreparedness in the healthcare industry. However, an ounce of prevention is worth a pound of cure. There are many steps an organization can take to protect itself from a data breach:

• Determine vulnerabilities. Evaluate current exposure and determine the likelihood that your organization will suffer from a data breach and the likely source.
• Create data breach response plan. Establishing protocols and implementing a task force ahead of time will dramatically increase the efficiency of your plan.
• Educate employees. Educate employees on proper handling of sensitive patient data and provide penalties for failure to comply.
• Partner with an expert. Partner with a data security expert to plan a preventative strategy and establish your response plan.

Be prepared for a data breach incident. More information on healthcare data security can be found in the free white paper titled, CPR: Circumstances, Prevention and Response in Safeguarding Private Healthcare Information, available at: www.krollontrack.com/healthcare-whitepaper/.

News & Events

#1 E-Discovery Provider 7th Year in a Row
Kroll Ontrack has been named the #1 electronic discovery provider in the 13th Annual Am Law Tech Survey. This survey, appearing in the October issue of Law Firm Inc., marks the seventh consecutive year that Kroll Ontrack has been awarded this honor. Of the firms surveyed, 62% of the respondents identified Kroll Ontrack as their electronic discovery provider of choice. Polling CIOs and IT directors from the largest 200 law firms in America since 1995, the Am Law Tech Survey aims to reveal information about hardware, software, budgets, new developments and the latest legal trends. For the full story, please visit www.krollontrack.com/news-releases/.

Last Chance to Attend Redesigned Certification Course in 2008
The industry's legal technology thought leader has revamped its E-Discovery Certification Course for 2008 with updated topics, additional speakers, and dual track, customizable sessions to appeal to beginner, intermediate and advanced learners. The redesigned course curriculum is ideal for legal and technical professionals of all levels, including in-house counsel, law firm attorneys, litigation support professionals, paralegals and IT staff. Due to overwhelming attendance, we have decided to offer an additional course in December. For more information and to register, visit www.krollontrack.com/certification-courses/.

Meet our representatives at the following events:

Visit www.krollontrack.com/upcoming-events for more information on these events and others.

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This newsletter was written by Gina Jytyla and Joni Shogren, Kroll Ontrack Staff Attorneys, with assistance from Kelly Kubacki and Meredith Socha, Kroll Ontrack Law Clerks. Ms. Shogren can be contacted by writing to jshogren@krollontrack.com.

For more information about electronic discovery and computer forensics services, contact Kroll Ontrack at 800 347 6105 or visit www.krollontrack.com.