A lawyer's duty to prevent evidence destruction does not end when they hit send on a legal hold email. Both in-house counsel and outside counsel are responsible for overseeing the implementation of and compliance with legal holds.
Depending on court, duty to preserve data in employee's personal cloud may arise if employer has "practical ability" access it or a "legal right" to info.
Some courts hold that parent companies with sufficient control over subsidiaries may have duty to ensure preservation of subsidiary's documents and ESI.
Implementing a legal hold to preserve relevant information is required upon a credible threat of litigation and preservation efforts must be reasonable.
An Illinois court offers guidance on when it is appropriate for a litigant to search an adversary's computer and weighs in on e-discovery proportionality.
Litigation hold notices are generally privileged, but the privilege may be lost if evidence is spoliated or through use of poor litigation hold procedures.
"Possession, custody and control" of documents & ESI examined by Sedona Conference. Suggests actual possession or legal right to material is proper test.
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