VW Lawyers Behaving Badly With Legal Holds

Compliance, E-Discovery, Legal Hold 0 January 13, 2017 281 Aaron Taylor

A truism that we can probably rely on, even in our current state of affairs, is that ‘training is good’.  In any industry or environment, those who are well-trained can for the most part be relied upon to do the right thing, in their work product and professional life.  And the trainers, of all people, would seem to need to know what is right before they can teach what is right; and they, of all people, should practice what they preach.  In my chosen line of work, that would entail learning about and teaching proper practices for implementing legal holds.

So, that little speech leads to a supposition regarding legal hold training, and its teachers.  One can assume that lawyers experienced in the eDiscovery world, which includes legal hold processes, would be excellent teachers or at least great guiding forces for an employee training program.  But what if the lawyers, those who should know better and know the consequences of not practicing what they teach, turn out to be “foxes guarding the henhouse”?  Not all lawyers act in this way; in fact, very rarely would they be found to blatantly break any ethics or legal rules, just as most professionals of every stripe are honest and capable.  That’s what makes the following actions so bizarre.

Corporate Counsel website (www.corpcounsel.com) just published this article describing the actions of one of VW’s legal counsel, who prematurely and purposely leaked the contents of a legal hold to VW employees that he/she was about to issue; this leak was not directed to any general audience, but to the very VW employees who would probably be custodians of data potentially relevant to the current emissions legal issue they were facing.  While you may read the article and underlying charges to get the entire story on this, basically the attorney stated that the legal hold was forthcoming, and described the scope of potential data discovery.  Employees hearing this message interpreted it to mean, “Clear the decks!”…and they did, deleting a significant amount of information related to the matter.  The entire sorry mess was only uncovered when an employee finally confessed to the goings-on.

Now, to spread the blame accurately, corporate officers have been implicated as being, at the least, knowledgeable of this egregious act; so it is not accurate to imply that just “lawyers” do such things.  But, back to my opening statements, everyday employees are not expected to be ‘legally knowledgeable’ about the workings of litigation management, legal holds, discovery and so forth; that is why training is so critically important, to impress upon all employees not only the mechanics of complying with a legal hold, but the reasons behind them and, very importantly, the ramifications of not complying with the hold and following the procedures.  But lawyers???  C’mon…we have to expect them to be above this type of act; and I’m throwing the complicit corporate executives in with them.  Ethics, duty and just plain honesty demand much better.  But, perhaps everyone involved in the entire eDiscovery industry needs to step back and acknowledge that everyone needs training in proper legal hold processes…everyone needs reminders of “doing the right thing”…and no-one is above or beyond the need for continual reinforcement of that edict.

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