Litigation Hold Letter (Litigation Checklist)

This litigation hold letter checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  Updated 8/25/10.
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Checklist:
- State that litigation is underway (and cite case caption) or that litigation is now anticipated (state matter/claims expected).
- Explain duty to preserve information (see example letter, below).
- Recommend that client agree on one person who will take the lead in preserving all information potentially relevant to this matter.
- Perform sufficient investigation into client's filing and document systems and the likely scope and topics for discovery in the case so as to be able to effectively advise on scope of litigation hold.
- Recommend contact former employees to ensure that they understand the importance of preserving all potentially relevant evidence.
- Develop strategy for preserving electronically stored information, including consulting an IT specialist if necessary.
- List electronically stored information that client must preserve (see example letter, below).
- Recommend that, where reasonable and possible, recently deleted information should be recovered.  Stone v. Lockheed Martin Corp., 2009 U.S. Dist. LEXIS 12105, 2009 WL 267688 (D. Colo. Feb. 2, 2009).
- Review document retention policies and suspend any automatic destruction or recycling policies for paper or digital files, digital back-up tapes, optical diskettes, or other storage media.
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Thoughts & Best Practices:
- Discuss the general issue of a litigation hold at the earliest possible date, and issue the letter as soon as litigation becomes "reasonably clear."  In a recent (January, 2010) order in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC by Judge Shira Sheindlin, a highly influential jurist in the field of e-discovery, a party was sanctioned for failure preserve electronic backup tapes after litigation was "reasonably clear," 10 months before a lawsuit was filed, even absent any finding of bad faith.
- Cross-reference the factual investigation plan and discovery plan when planning a litigation hold.
- While this checklist is intended for use in drafting a litigation hold letter to send to one's own client, it is also often appropriate to draft and send a litigation hold letter to the opposing party (this was the case in Stone v. Lockheed Martin, above).  Sending a litigation hold letter to the opposing party may be helpful in the event you later seek sanctions for discovery violations or spoliation.  While the tone and mechanics may be different, the content will be largely the same as listed above.
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Example Litigation Hold Letter:
- Sample Litigation Hold Letter
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Jeff Vail is a Colorado business litigation and personal injury attorney at The Law Office of Jeff Vail LLC. If you found this post useful, follow me on http://www.twitter.com/jeffreyvail or sign up for my monthly newsletter for the latest litigation strategy and innovation updates.
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This litigation hold checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

Affirmative Defenses (Litigation Checklist)

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy. It is intended to assist in identifying appropriate affirmative or additional defenses for inclusion in an answer. To my knowledge, this is the most complete list of affirmative defenses available, currently consisting of 138 separate affirmative defenses.  This list is updated continuously--if you have a suggested addition, please contact me.  Updated 8/20/10.
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C.R.C.P. 8(c) requires a party to "set forth affirmatively . . . [any] matter constituting an avoidance or affirmative defense."
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Checklist & Best Practices:
- Consider each of the below affirmative defenses--does it potentially apply in your case?  Rule 8(c) requires that both defenses to liability and defenses that potentially mitigate damages must be set forth in the pleadings.  Indus. Comm'n v. Ewing, 418 P.2d 296 (Colo. 1966).
- If a defense is not raised by the pleadings, it may still be tried by the express or implied consent of the parties.  See C.R.C.P. 15(b); Great Am. Ins. Co. v. Ferndale Dev. Co., 523 P.2d 979 (Colo. 1974).  However, it is error for a trial court to consider a defense first presented at trial if it is objected to.  Maxey v. Jefferson County Sch. Dist. No. R-1, 408 P.2d 970 (Colo. 1965).  Accordingly, while pleadings may be amended to add additional affirmative defenses, it is essential that all defenses to be raised at trial are pleaded before trial, and that any attempt to raise defenses not pleaded is objected to.
- Is there a good-faith basis for believing the affirmative defense applies as required by Rule 11 (i.e. do not make a laundry-list)?
- Note that, unlike affirmative defenses where the defendant bears the burden of proving the defense, some of the following are more properly styled "additional defenses" where the plaintiff bears the burden of proving that the defense does not apply (e.g. service of process).
- While the vast majority of these defenses will not apply in any given case, review of the complete list may be an especially helpful tool in brainstorming at the outset of a case.
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List of Affirmative Defenses:
- statutory defenses prerequisites (these will vary depending on the claims)
- preemption by federal or other law
- failure to state a claim upon which relief may be granted (always use)
- accord and satisfaction
- arbitration and award
- assumption of risk
- economic loss rule
- contributory or comparative negligence
- intervening cause
- supervening cause
- claimants own conduct, or by the conduct of its agents, representatives, and consultants
- discharge in bankruptcy
- duress
- estoppel
- recoupment
- cardinal change
- set off
- failure of consideration
- fraud
- illegality
- injury by fellow servant
- borrowed servant
- laches
- license
- payment
- release
- res judicata
- statute of frauds
- statute of limitations
- waiver
- unclean hands
- no adequate remedy at law
- failure to mitigate damages (or, in some circumstances, successful mitigation of damages)
- rejection of goods
- revocation of acceptance of goods
- conditions precedent
- discharge
- failing to plead fraud with particularity
- no reliance
- attorneys’ fees award not permissible
- punitive damages not permissible
- lack of standing
- sole negligence of co-defendant
- offset
- collateral source rule (common law) or as codified in statute (see, e.g., C.R.S. Section 13-21-111.6)
- improper service
- failure to serve
- indemnity
- lack of consent
- mistake
- undue influence
- unconscionability
- adhesion
- contrary to public policy
- restraint of trade
- novation
- ratification
- alteration of product
- misuse of product
- charitable immunity
- misnomer of parties
- failure to exhaust administrative remedies
- frustration of purpose
- impossibility
- preemption
- prior pending action
- improper venue
- failure to join an indispensable party
- no private right of action
- justification
- breach by plaintiff
- failure of condition precedent
- anticipatory repudiation
- improper notice of breach
- breach of express warranty
- breach of implied warranty
- parol evidence rule
- unjust enrichment
- prevention of performance
- lack of privity
- merger doctrine
- learned intermediary or sophisticated user doctrine
- adequate warning
- no evidence that modified warning would have been followed or would have prevented injury
- manufacturing/labeling/marketing in conformity with the state of the art at the time
- release
- res judicata
- assumption of the risk
- product was unavoidably unsafe
- product provides net benefits for a class of patients
- spoliation
- damages were the result of unrelated, pre-existing, or subsequent conditions unrelated to defendant's conduct
- lack of causal relationship
- act of god (or peril of the sea in admiralty cases)
- force majeure
- usury
- failure to act in a commercially reasonable manner
- acquiescence
- doctrine of primary or exclusive jurisdiction
- exemption
- failure to preserve confidentiality (in a privacy action)
- filed rate doctrine
- good faith
- prior pending action
- sovereign immunity
- truth (in defamation actions)
- suicide (in accident or some benefits actions)
- adverse possession (in trespass action)
- mutual acquiescence in boundary (in trespass action)
- statutory immunity (under applicable state or federal law)
- unconstitutional (relating to statute allegedly violated)
- insanity (normally in criminal context, but may have some application in civil suits linked to criminal acts)
- self-defense (in assault, battery, trespass actions)
- permission/invitation (in assault, battery, trespass actions)
- agency
- Section 2-607 UCC acceptance of goods, notification of defect in time or quality within reasonable time
- at-will employment
- breach of contract
- hindrance of contract
- cancellation of contract/resignation
- circuitry of action
- discharge (other than bankruptcy)
- election of parties
- election of remedies
- joint venture
- lack of authority
- mutual mistake
- no government action
- privilege
- reasonable accommodation
- retraction
- safety of employee (ADA)
- statutory compliance
- no damages (where required element of pleading)
- termination of employement
- undue burden (ADA)
- wrong party
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Jeff Vail is a Colorado business litigation and personal injury attorney at The Law Office of Jeff Vail LLC. If you found this post useful, follow me on Twitter @jeffreyvail or sign up for my monthly newsletter for the latest litigation strategy and innovation updates.

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy.

Rule 54(b) Certification & Opposition (Litigation Checklist)

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy. It is intended for use with motions requesting Rule 54(b) certification that a judgment is final for purposes of interlocutory appeal, as well as opposition to such motions.  Updated 8/18/10.
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C.R.C.P. 54(b) permits courts to direct the entry of a final judgment “as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” It is identical to the federal rule, and federal case law on this point is considered persuasive in Colorado. State ex rel. Salazar v. Gen. Steel Domestic Sales, LLC, 129 P.3d 1047, 1049 (Colo. App. 2005).
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Checklist
-Three step process in Colorado (see Harding Glass Co. v. Jones, 640 P.2d 1123, 1125 (Colo. 1982)):
-- Is ruling to be certified a ruling upon an entire ‘claim for relief’?
-- Is decision a final disposition of an individual claim?
-- Is there any “just reason for delay?” This issue is within sound discretion of trial court. Tans Cent. Airlines v. McBreen & Assocs., 497 P.2d 1033, 1034 (Colo. App. 1972).
- Are there other actual or potential justiciability concerns if interlocutory appeal proceeds?
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Best Practices
- Purpose of rule is to preserve judicial resources, Harding, 640 P.2d at 1125, and to discourage piecemeal review of a case, Hamm v. Twin Lakes Reservoir & Canal Co., 373 P.2d 525, 526 (Colo. 1962). Ensure any motion or opposition frames the issue in these contexts.
- Always consider whether remaining claims could in any way create justiciability or res judicata issues. “Certification generally is inappropriate when further proceedings might moot the issues involved.” Fox v. Baltimore City Police Dept., 201 F.3d 526, 531 (4th Cir. 2000).
- Consider whether opposition is suitable for recycling as a motion to the Court of Appeals to stay the appeal pending resolution of the remaining claims.
- If opposing a Rule 54(b) motion, consider using the opportunity to request, in the event certification is granted, a supersedeas bond for potential award of attorneys' fees on appeal. C.R.S. Section 13-17-201, for example, provides for mandatory award of attorneys' fees where dismissal under C.R.C.P. 12(b) is affirmed on appeal. Ferrel v. Colo. Dept. of Corr., 179 P.3d 178, 189 (Colo. App. 2007).
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Sample Motion:
- Sample Motion Opposing Rule 54(b) Certification
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Jeff Vail is a Colorado business litigation and personal injury attorney at The Law Office of Jeff Vail LLC. If you found this post useful, follow me on Twitter @jeffreyvail or sign up for my monthly newsletter for the latest litigation strategy and innovation updates.

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy.

Law 2.0 Roundtable

Last Friday I was invited to participate in the "Law 2.0" roundtable held by CU Law School and the Silicon Flatirons center for law and entrepreneurship.  25 or so attorneys from around the country (though mostly from Colorado) participated.  Primarily we discussed the framework for thinking about the move toward "Law 2.0" (loosely framed around Richard Susskind's list of disruptive technologies for law practices).  A few take-aways:
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- Process automation is the current focus of big firms and vendors, and there seems to be a fair amount of progress being made here, especially in easily commoditized fields like non-disclosure agreements (where CISCO's associate general counsel discussed their industry-leading solution), start-up financing documents, etc.  Other than a comment from Qwest's general counsel that this should be equally applicable to motions practice in litigation (which I wholeheartedly seconded--my blog is my effort at exactly this project), the focus was largely on transactional automation.
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- There was general agreement with my proposal that, while process-automation may drive down the cost of legal services, it will also permit "bespoke" services to spread to a wider market that can't currently afford such service.  This is one of the focuses of my practice--delivering high-end, bespoke litigation services to individuals and small/medium-sized businesses that would otherwise need to write off their claims or pay for only a limited defense/prosecution of claims.
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- One suggestion I made that did not gain much traction was the notion of the potential for fusion between open-source systems and knowledge management and the potential for ad hoc "firm" structures.  Most participants were skeptical about the ability to capture the "knowledge and know-how" of a practice into an open-source repository.  Unfortunately this wasn't the forum for me to demonstrate the approach to open-source knowledge management that I'm developing on this blog.  It also seemed to be outside the grasp of mostly large-firm attorneys and large corporation in-house counsel that a dynamic, ad hoc team of individual attorneys brought together to meet the specific needs of a case or client could function effectively.  In my view, this is a necessary component of any large-scale switch to open-source systems in the law because until the large firm structure becomes irrelevant there will still be incentives to develop and protect knowledge management solutions.  If attorneys group together as needed on a more ad hoc basis, then the incentive will switch toward participation in open-source systems.  Again, only Qwest's general counsel seemed to pick up on the potential value of this idea--in fact, he said this is already how Qwest handles much of its litigation.
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All together, the Silicon Flatirons project put together an excellent roundtable, and I hope I'll have the chance to participate in future events.

Privilege Log (Litigation Checklist)

This privilege log checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  When withholding relevant documents under claims of attorney-client privilege or attorney work product, production of a privilege log documenting the withheld documents is required.
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Checklist:
- Produce a log providing sufficient details for each item withheld to substantiate the claim of privilege or work product.
- Ensure that the description of each document fully sets forth the basis for the claim of privilege or work product. For example, that an email between two non attorneys withheld as privileged explains that Employee A is relaying legal advice from and at the request of Attorney B to Employee C.
- See sample privilege log, below, for format and information to be included.
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Thoughts & Best Practices:
- While there is no express timing requirement for producgtion of privilege logs, they should generally be produced with or shortly after initial production pursuant to Rule 26(a)(1) or when responding to discovery requests.  A privilege log production schedule is appropriate for negotiation and inclusion in the Case Management Order.
- In Colorado state courts, C.R.C.P. 26(b)(5) requires only that the withholding party "describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privielged or protected, will enable other parties to assess the applicability of the privilege or protection."  What minimal case law interprets this rule provides no additional insights.  See, e.g., Cardenas v. Jerath, 180 P.3d 415, 418 (Colo. 2008).  However, federal case law (below) may be persuasive.
- In Federal Court (D. Colo.), F.R.C.P. states that a the withholding party must "describe the nature of the documents, communications, or tangigle things not produced or disclosed--and do so in a manner that, without revealing information itself privileged or protected, will enable the other parties to assess the claim."  F.R.C.P. 26(b)(5)(A)(ii).  At a minimum, this means "the author or origin of the document; any documents or materials attached to the document; all recipients of the document, including addressees and persons or entities receiving copies; the date of origin of the document; and a description on the contents of the document in sufficient detail as to reveal why it is subject to the asserted privilege."  Wildearth Guardians v. U.S. Forest Service, --- F. Supp. 2d ----, at *16 2010 WL 1413112 (D. Colo. April 1, 2010).  The party withholding documents has the burden of providing sufficient information in its privilege log to establish the privilege, or risks waiver.  Id.
- It can be particularly tricky to correctly deal with email chains where multiple parties are "to:" and "cc:", and there are several replies including different addressee lists.  A good rule of thumb is that each message should be identified and the claim of privilege or work product described as a separate document so that claims can be properly evaluated as to each segment of the email.  It may be adviseable to break down "to:", "cc:" and "bcc:" recipients if necessary to show that an attorney was a primary recipient of a communication, rather than merely copied on the email.  See U.S. Postal Serv. v. Phelps Dodge Refining Corp., 852 F. Supp. 156, 163-64 (E.D.N.Y. 1994) ("A corporation cannot be permitted to insulate its files from discovery simply by sending a 'cc' to in-house counsel").
- When listing the authors or recipients of documents or communications, it is best to identify (ideally in a legend) who they are, who they work for, and if they are an attorney (or work for an attorney).
- Consider whether it may be appropriate, especially where documents are non-damaging and there is a dispute as to the claim of privilege or work product, to produce the documents pursuant to a non-waiver agreement.
- See Motion for In Camera Examination or Review Checklist for information about disputes regarding privilege logs.
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Example Forms:
- Click Here for Sample Privilege Log (Locked)
- Click Here for Publicly Editable Privilege Log (Please feel free to make improvements to this form, and comment below to describe what changes were made)
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Jeff Vail is a Colorado business litigation and personal injury attorney at The Law Office of Jeff Vail LLC. If you found this post useful, follow me on Twitter @jeffreyvail or sign up for my monthly newsletter for the latest litigation strategy and innovation updates.
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This privilege log checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

Affidavit or Declaration Checklist (Litigation Checklist)

This affidavit or declaration checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  An affidavit or declaration is simply a written and sworn statement and has various uses in litigation including support of a motion, response, verified complaint, etc.
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Checklist:
- State the name of the affiant, being duly sworn and over the age of 21 (if true), states as follows based on personal knowledge:
- State facts or opinions in numbered paragraphs.
- Provide a signature block for the affiant and notary (see sample affidavit, below)
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Thoughts & Best Practices:
- While affidavits normally state only facts and information personally known to the affiant, there may be exceptions where either hearsay exceptions or exclusions apply, or where the rules of evidence do not apply (such as in some arbitration or mediation, etc.).  Consider what the applicable evidentiary standard is, if any, and ensure that the affidavit sets forth the required foundation.
- Ensure that statements made in affidavit are not contradicted by previous sworn testimony in depositions or hearings, or by other documentary evidence.  While an affidavit that contradicts earlier testimony may be permissible, consider the potential for exploitation on cross-examination, etc.
- Consider how the opposing party could use the statements in the affidavit to their advantage in future motions, depositions, cross-examination, etc.  Can the affidavit be rephrased?  If not, does the benefit outweigh the risk?
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Example Forms:
- Click Here for Sample Affidavit (Locked)
- Click Here for Publicly Editable Affidavit (Please feel free to make improvements to this form, and comment below to describe what changes were made)
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Jeff Vail is a Colorado business litigation and personal injury attorney at The Law Office of Jeff Vail LLC. If you found this post useful, follow me on Twitter @jeffreyvail or sign up for my monthly newsletter for the latest litigation strategy and innovation updates.
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This affidavit or declaration checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

Tolling Agreement (Litigation Checklist)

This tolling agreement checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  A tolling agreement is often used when the parties to a dispute are nearing the running of the statutory limitations period and want time to continue negotiations rather than force the filing of a lawsuit.
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Checklist:
- Identify all applicable statutes of limitation related to all applicable claims, and ensure the tolling agreement is fully executed before any limitation period runs.
- Set forth recitals as you would in a settlement agreement or other contract, focusing on the identity of the parties, the nature of their dispute, and the mutual promises that serve as consideration.
- Set forth:
 -- Term of the agreement, including method(s) for early termination, if any.
 -- State that the statute of limitations will not run during term, and that no legal or other enforcement action will be taken during the term of the agreement
 -- State that the agreement does not constitute an admission by either party
 -- Include standard contract clauses: execution in counterparts clause, a choice of law clause, and a merger and no oral modifications clause (see sample tolling agreement, below, for language).
- Execute the agreement, and retain fully executed copy for records (it is not necessary to file or record the agreement)
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Thoughts & Best Practices:
- Ask:  what is the purpose of the tolling agreement--is it just to delay needing to think about the case, or is there a specific objective in mind?  Consider shaping the settlement environment through the term and early termination provisions by, for example, terminating the agreement at a certain earlier date if the parties have not completed mediation with a mutually agreeable mediator by that date, etc.
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Example Forms:
- Click Here for Sample Tolling Agreement (Locked)
- Click Here for Publicly Editable Tolling Agreement (Please feel free to make improvements to this form, and comment below to describe what changes were made)
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Jeff Vail is a Colorado business litigation and personal injury attorney at The Law Office of Jeff Vail LLC. If you found this post useful, follow me on Twitter @jeffreyvail or sign up for my monthly newsletter for the latest litigation strategy and innovation updates.
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This tolling agreement checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.