“The Dog Ate My Emails!”: Document Retention Policies, Litigation Holds, and Legal Ethics 11-15-2014

Summary: Once upon a time, corporations, government departments, and other entities made their own decisions about how long to retain documents created or received in the course of business. Today, document retention policies can present difficult issues for the entities, for the lawyers who advise them, and for the courts that are called on to decide the consequences when documents are no longer available. Particularly in the electronic age, where computers die, people delete their emails, and backups are not always reliable, document retention cannot be counted on. What are an attorney’s obligations? Should a lawyer bringing suit write to the other side and warn that entity not to engage in normal document destruction and to back up particularly important data? Does the company being sued have to comply? These are some of the questions that the panel will address. -- In-house lawyers may face particular difficulties. Does the lawyer represent only the institution, or does the lawyer also have obligations to the employees? Should the lawyer advise the employees to censor themselves in emails sent via the employer’s email system? Should employees be encouraged to communicate about work through their personal email instead? How does an in-house lawyer handle the conflicts between representing individuals who do not want to disclose discoverable emails for emails unrelated to ongoing litigation (perhaps because they made impolitic comments about their supervisors)? -- Finally, the panel will discuss if there are special obligations for counsel representing government entities. Government records have a unique status. They document the conduct of public business and are necessary for transparency and, more formally, are subject to retention and preservation requirements. Should lawyers advise government clients that backups cannot be destroyed for years, contrary to current IRS policy? Should lawyers inform government employees that their personal emails, if discussing issues related to their work, may also be discoverable? How does the government’s duty of transparency to the public affect its disclosure obligations and the lawyer’s corresponding obligations to her client? -- The Federalist Society's Professional Responsibility & Legal Education Practice Group presented this panel on "'The Dog Ate My Emails!': Document Retention Policies, Litigation Holds, and Legal Ethics on Saturday, November 15, during the 2014 National Lawyers Convention. -- Featuring: Ms. Jamie Brown, Global eDiscovery Counsel, UBS AG, and former Associate General Counsel, Commodities Futures Trading Commission; Mr. Daniel Epstein, Executive Director, Cause of Action; Mr. Patrick Oot, Partner, Shook Hardy & Bacon L.L.P., and former Senior Special Counsel for Electronic Discovery Office of the General Counsel, U.S. Securities and Exchange Commission; Mrs. Victoria A. Redgrave, Managing Partner, Redgrave LLP; and Ms. Julie Goldsmith Reiser, Partner, Cohen Milstein Sellers & Toll PLLC. Moderator: Hon. Jerry Smith, U.S. Court of Appeals, Fifth Circuit. Introduction: Jack J. Park Jr., Of Counsel, Strickland Brockington Lewis LLP; and Chairman, Professional Responsibility & Legal Education Practice Group.