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Fear and Loathing in Preservation
Most in-house counsel know the types of inquiries that should trigger evidence preservation or collection protocols. Once there is reason to believe there will be litigation or investigation, the duty to preserve kicks in immediately. But what's next? First, make a list of people who are likely to have control over potentially evidentiary documents and contact this long list of custodians. Then send out a document retention letter or request for documents and wait for your data to roll in, right? Wrong. Before sending any communication to your custodians, you should consider that they are not attorneys and are usually uncomfortable with the entire litigation process. Considering and having ready answers for the following ten questions'which your custodians are sure to voice ' will help to make your collection efficient and cost effective. It will avoid business interruptions and settle the fear and anxiety your custodian may be feeling. Being organized about these answers will inspire confidence and cooperation from your custodians and will be sure to make your job easier.
What Are the Issues Being Litigated and What Is Your Role in Their Resolution?
Attorneys deal with litigation matters every day so they tend to become common place. However, your custodian most likely has a very different role and is unfamiliar with discovery and the litigation timeline. When you approach a custodian, he or she will feel like he/she is under investigation. Collecting e-mail from a custodian puts her under examination. Litigation can be a frightening experience for people unused to it, so be patient and explain the case. Explain what you need from your custodian after he provides his documents. Let him know if he will be deposed, if they will need to testify or if they will need to sign an affidavit. Ease such fears up front for a smoother document collection process.
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Yachts, Jets, Horses & Hooch: Specialized Commercial Leasing Models
Defining commercial real estate asset class is essentially a property explaining how it identifies — not necessarily what its original intention was or what others think it ought to be. This article discusses, from a general issue-spot and contextual analysis perspective, how lawyers ought to think about specialized leasing formats and the regulatory backdrops that may inform what the documentation needs to contain for compliance purposes.
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