Page 23 - American College of Trial Lawyers Federal Criminal Procedure Committee 2020 Update: Recommended Practices for Companies and Their Counsel in Conducting Internal Investigations

Second, Investigatory Counsel should identify all relevant employees who are the
likely sources of documents. Investigatory Counsel, in consultation with disinterested outside and
in-house counsel, should conduct preliminary interviews to determine such relevant employees.
Third, in-house counsel, after consulting with Investigatory Counsel, should send an email direction,
commonly referred to as a “litigation hold,” to relevant employees stating, in essence, that none of the
documents identified in the litigation hold, including electronic documents and attachments, may be
destroyed without explicit approval of designated in-house counsel.

Fourth, Investigatory Counsel should engage in an analysis of relevant documents to
determine if others should be included in the litigation hold. This is especially important when the
organization affected by the internal inquiry is in many different locations. For electronic documents,
this may include communicating with the “key players” to learn how they stored information.
Although the 2015 amendments to the Federal Rules of Civil Procedure pertaining to discovery have,
at least in theory, reduced the scope of electronic information that may eventually be produced in
litigation by introducing a “proportionality” concept, in-house counsel nonetheless already should
65
have prepared and have available guides to all sources of “electronically stored information” (“ESI”)
in the company and should be prepared to institute a litigation hold on all such materials. That
66
hold should include procedures sufficient to preserve hard-copy documents, as well as electronic
documents and ESI, including the metadata associated with native format files.

Disinterested in-house counsel (or an equivalent executive if there is no in-house
counsel available) should oversee compliance with a litigation hold, using reasonable efforts to
continually monitor the party’s retention and production of relevant documents, including periodically
re-issuing, as needed, the litigation hold to remind key players of their obligation to preserve. Such
67
in-house counsel should regularly apprise Investigatory Counsel of the company’s litigation hold
efforts and compliance. Once the relevant documents are obtained, all documents should be tracked
in the same way that one would during traditional litigation. A document storage and retention policy
for the investigation should be established as early as possible following the collection of relevant
documents. This should involve the segregation of relevant backup electronic media, which in some
cases may necessitate Investigatory Counsel’s taking physical possession of backup media.

B. Document Collection and Review

Investigatory Counsel should oversee and manage document collection. The relevant
universe of hard-copy and electronic documents must be identified and collected as early as possible
in the investigative process so that all available information will be preserved, and there will be a

65 See Fed.R.Civ.P. 26(b)(1), limiting the scope of discovery to “any nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy,
the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery outweighs its likely benefit.” (Emphasis added.)
66 See “Guidelines for the Discovery of Electronically Stored Information,” for the Northern District of California (2015), pg. 1-2
(discussing need to preserve electronically stored information under the proportionality standard at FRCP 26(b)(1)), available online at
https://www.cand.uscourts.gov/filelibrary/1117/ESI_Guidelines-12-1-2015.pdf.
67 See Karsch v. Blink Health Ltd., 2019 WL 2708125 at *18 (S.D.N.Y. June 20, 2019) (holding that plaintiff in civil action was
obligated to preserve evidence relevant to his claims beginning on the date that he sent a demand letter); see also Telecom Int’l Am. Ltd. v.
AT&T Corp., 189 F.R.D. 76, 81 (S.D.N.Y. 1999) (“Once on notice [that evidence is relevant], the obligation to preserve evidence runs first
to counsel, who then has a duty to advise and explain to the client its obligations to retain pertinent documents that may be relevant to the
litigation.”) (citing Kansas-Nebraska Natural Gas Co. v. Marathon Oil Co., 109 F.R.D. 12, 18 (D.Neb. 1983)).

 17 