Proper framework for analysis and evidence needed to establish inadvertent waiver under F.R.E. 502(b) – or – “I may not always be right but I’m never wrong.”

Amobi v. District of Columbia Dept. of Corrections, 2009 WL 4609593 (D.D.C. Dec. 8, 2009)

Comrie v. Ipsco, Inc., 2009 WL 4403364 (N.D.Ill. Nov. 30, 2009)

Coburn Group, LLC v. Whitecap Advisors LLC, 640 F. Supp.2d 1032 (N.D.Ill. 2009)

Today’s “trifecta” addresses the proper framework for analyzing the application of Fed. R. Evid. 502(b) to claims of inadvertent waiver of attorney-client privilege and work-product protection. It also discusses the information that should be provided to a court when seeking Rule 502’s protection. In both Amobi and Comrie, defendants failed to establish that they took reasonable steps to prevent the disclosure of privileged information, and thus, failed to establish the elements of Rule 502(b), resulting in a finding of waiver. These decisions confirm that the reasonableness of the precautions taken by a party to protect its privileged and protected communications is an explicit consideration in determining whether a waiver occurred under Rule 502(b), no matter how inadvertent the disclosure. 

Notably, in Amobi Judge Facciola rejected the argument that if a “disclosure was made by a lawyer, then it clearly was not mistaken and not inadvertent.” He observed that if a lawyer’s mistake never qualified as an inadvertent disclosure, it “would vitiate the entire point of Rule 502(b)…. It would essentially reinstate the strict waiver rule in cases where lawyers reviewed documents, and would create a perverse incentive not to have attorneys review documents for privilege.” 2009 WL 4609593 at *8. Judge Facciola also jokingly noted that the premise of plaintiff’s argument was wrong because: “Lawyers make inadvertent mistakes; it is judges who never make mistakes.” Id.(emphasis in original). The court’s tongue-in-cheek comment in Amobi reminded of me of something my father frequently told me in my youth: “I may not always be right, but I’m never wrong.” I have remembered that sage advice throughout my legal career, especially when reflecting upon a court’s evidentiary rulings.

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Sanctions rejected where evidence was destroyed pursuant to routine, good-faith records management practice before receipt of any notice of a likelihood of litigation

Today’s post demonstrates the importance of a document retention/destruction policy applicable to a company’s paper and electronic records that is consistently applied and routinely followed.

In Mohrmeyer, plaintiff sought discovery sanctions in the form of an adverse inference instruction because Wal-Mart failed to preserve certain records relevant to his accident. The particular record, a maintenance log, was not typically preserved in the ordinary course of the company’s business. It was routinely discarded on a weekly basis. Plaintiff noted that Wal-Mart employees attended to him immediately after his fall, called 911 and summoned an ambulance to take him to the hospital. As a result, the plaintiff in Mohrmeyer claimed that Wal-Mart’s duty to preserve all relevant documents was triggered immediately following his fall because Wal-Mart “should have known” that his accident would result in litigation.

Mohrmeyer is significant because the court recognized:

The law does not and should not require businesses to preserve any and all records that may be relevant to future litigation for any accidental injury, customer dispute, employment dispute, or any number of other possible circumstances that may give rise to a claim months or years in the future, and there is absolutely no contemporaneous indication that a claim is likely to result at the time the records are destroyed pursuant to a routine records management policy.

That Wal-Mart preserved some records relating to the plaintiff’s accident pursuant to its policy involving accidental injuries did not change the result in the court’s view because the particular maintenance log was only temporarily retained and was routinely discarded. Merely because Wal-Mart summoned an ambulance for the plaintiff did not make the litigation more likely to occur. The court found no deliberate or improper conduct by Wal-Mart involving its failure to preserve what the court described as a “transient record.”

The court recognized that a duty to preserve applies only when a party has been put on notice that evidence is relevant to pending litigation or which may be relevant to future litigation that is likely to occur. It concluded that at the time the maintenance log was discarded, there only existed a speculative possibility that a lawsuit might be brought. The court observed that before the log was destroyed Wal-Mart had received no telephonic or written warning from the plaintiff or his counsel raising the possibility of a lawsuit and there was no history of litigation between the parties which made a lawsuit more likely to occur. The court was not willing “to presuppose the likelihood of litigation for every slip and fall accident that occurs.”

The court in Mohrmeyer distinguished the factual scenario presented from an airline disaster where the “trigger date” for the preservation of evidence would clearly be the date of the disaster “because of the high likelihood of litigation following such [an event].” The mere fact that an accident had occurred was insufficient to establish that litigation was likely to ensue.

The court also noted that the plaintiff testified in his deposition that he did not even consider filing a lawsuit until a couple of months after the accident occurred, which was long after the maintenance records were destroyed in the ordinary course of the company’s business. This is a good practice point to remember in discovery in any matter where discovery sanctions potentially may be sought.

Accordingly, Mohrmeyer concluded that when evidence is destroyed pursuant to a company’s “routine, good-faith records management practices” before any notice of the likelihood of litigation is received, discovery sanctions of any type are not warranted.

Vitruvian Man image courtesy Flickr user Michael Licht under this Creative Commons license.

Failing to follow Rule 34’s procedures can result in having to produce ESI a second time in a different format

Covad Communications Co. v. Revonet, Inc., 260 F.R.D. 5 (D.D.C. 2009); Cenveo Corp. v. Southern Graphic Systems, 2009 WL 404 2898 (D. Minn. Nov. 18, 2009)

Because the production of electronically stored information (ESI) can occur in various formats, Rule 34 sets up a process through which the parties are supposed to resolve their disputes over the format of production. Rule 34(b)(1)(C) permits the requesting party to specify the format in which to produce the requested ESI. The producing party can either agree to produce the ESI in the requested form or can object to the proposed format. Rule 34(b)(2)(D) specifies that when either the requesting party fails to specify a production format in its request for documents or when the producing party objects to a specified format, the producing party is obligated to identify the format in which it proposes to produce the requested ESI. If the parties are unable to agree on a format, the Rule contemplates that a court will then resolve the issue, but is not bound by either party’s proposed production formats.

Rule 34 contemplates that the parties will resolve their disputes over the format of production before any production occurs. Indeed, the Advisory Committee Note to Rule 34 explains: “Stating the intended form before production occurs may permit the parties to identify and seek to resolve disputes before the expense and work of the production occurs.”

When a party unilaterally produces ESI in a format of its choice without providing the prior notice contemplated by Rule 34(b)(2)(D), the Advisory Committee Note to the Rule further explains that the producing party runs the risk that a court may conclude the ESI was produced in a format that was not reasonably usable and may order that it be reproduced in a different form. That very nightmare occurred in both of today’s featured decisions and the Covad Communications decision provides a textbook example of the type of problem that can occur when a party has to produce its ESI a second time in a different format.

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Rule 26(b)(2)(c)’s proportionality standard triggers protective order

High Voltage Beverages LLC v. The Coca-Cola Company, 2009 WL 2915026 (W.D.N.C. Sept. 8, 2009) [Link to decision via Google Scholar]

Several of our prior blog posts [e.g., here and here] have addressed how Rule 26’s proportionality principles can be used to control a party’s ediscovery costs. As we explained in one of those posts, because Rule 26(b)(2)(c) applies to all discovery requests, its proportionality standard potentially can be applied even to sources of electronic information that are reasonably accessible, so long as the burden or expense of the proposed discovery outweighs its likely benefit. And with the ABA reporting “Electronic discovery should be proportionate to [the] controversy,” we thought today would be a good time to post about a decision that applied Rule 26’s proportionality standard to a source of electronic information that was “reasonably accessible.” Addressing what it characterized as “a novel question,” the court in High Voltage Beverages granted the defendant’s request for a protective order under Rule to 26(b)(2)(c).

After the defendant produced 1.7 million pages of documents, plaintiff demanded that it search for alternative sources of documents relating to defendant’s investigation and selection of its VAULT mark. In response, defendant identified an additional 17 gigabytes (1.5 million pages) of documents from a senior executive which had been retained under litigation holds issued in unrelated lawsuits. Defendant did not object to producing that data, but because defendant believed it produced every document related to the clearance of its VAULT mark, defendant objected to incurring the cost of reviewing the documents. Defendant offered plaintiff the opportunity to key-word search the documents and plaintiff refused. In its request for a protective order, defendant explained that a de novo review of the 17 gigabytes of data would not result in the discovery of any documents that have not already been produced.

The court in High Voltage Beverages accepted the defendant’s representation that it had produced all documents in its possession concerning the VAULT mark and concluded the time and expense of reviewing the documents would be extraordinary. Thus, the court concluded that the burden and expense of the requested discovery outweighed its likely benefit and held the defendant did not have to review the data before producing it to the plaintiff. Therefore, the court denied plaintiff’s motion to compel and granted defendant’s motion for a Rule 26 protective order. It did require that defendant to again extend the opportunity to key-word search the documents prior to their production.

So the moral of the story is do not overlook Rule 26(b)(2)(c) cost-shifting arguments where appropriate. With the growing chorus that ediscovery costs are harming our civil justice system, courts are more likely to favorably consider Rule 26 cost-shifting arguments. Rule 26(b)(2)(c)’s proportionality standard can provide an effective tool to control your ediscovery costs.

Photo courtesy Flickr user Capt Kodak via this Creative Commons license.

The Good, The Bad And The Ugly (of an ediscovery decision)

Scalera v. Electrograph Systems, Inc., 2009 WL 3126637 (E.D.N.Y. Sept. 29, 2009)

Today’s blog post is named after the 1967 epic spaghetti western starring Clint Eastwood. Wikipedia explains that the movie’s plot “centers around three gunslingers competing to find a fortune in buried confederate gold.” Intended by its director to be a “tongue-in-cheek satire on run-of-the-mill westerns,” Quintin Tarentino once called it “the best-directed film of all time.”

While that might be a bit of a stretch, The Good, The Bad and The Ugly aptly summarizes the court’s holding in Scalera v. Electrograph Systems. While you won’t find any confederate gold, bounty hunters or ghost towns in the decision, there are a number of important points that can be gleaned from the opinion. However, as with many ediscovery decisions, there are several bad, and at least one downright ugly finding entered by the court. Luckily, while the court concluded the company “unquestionably breached a duty to preserve emails,” the plaintiff failed to establish that any of the destroyed emails would have been favorable to her claim and, thus, the court denied plaintiff’s request for an adverse inference instruction. As a result, on several levels, Scalera is a decision that merits your attention.

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State court practitioners beware: sanctions can be entered against your clients for failing to preserve emails, even if your state has not adopted a set of ediscovery rules

Einstein v. 357 LLC, et. al. (N.Y. Supreme Court, October 21, 2009)

In Einstein, a trial judge in the Supreme Court of the State of New York recently entered sanctions against several defendants for their failure to implement a litigation hold which resulted in the loss of emails relating to the presale condition of a condominium unit purchased by the plaintiffs in Brooklyn, New York. The trial judge recognized that even though New York had not yet enacted any rules addressing electronic discovery, and that its Civil Practice Law Rules and common law decisions were silent on the need to institute a litigation hold, New York courts have turned to the Federal Rules of Civil Procedure and case law interpreting them for guidance in other contexts.

The crux of the problem in Einstein was the limited storage capacity of the company’s email server. Each of the company’s brokers were allocated 200 megabytes of space, and once that limit was reached, a broker could not send or receive emails until that space was cleared for more email traffic. As a result, brokers had to clear old emails from the system in the ordinary course of their business. Unfortunately, a litigation hold was never instituted, and as a result, emails (several of which the plaintiff’s produced to the defendants) were not preserved. While emails were forwarded through a central server, the company’s email system was configured in such a way that once an email was deleted by an individual user from the user’s inbox, it was also deleted on the central server. While daily, weekly and monthly backup tapes were made of the email server, the daily and weekly backups were periodically reused. Thus, if emails sent or received during a particular month were also deleted during that month, the monthly backup would not capture those deleted emails.

The court concluded the defendants’ counsel and the company’s IT director failed to investigate the basic mechanics of the company’s email system and its retention practices until 11 months after plaintiffs first served their document demands upon the defendants. The court further concluded that defendants were aware of the fact that the contents of their emails would be relevant to the litigation and recalled that it had repeatedly warned defendants about the need to make a complete production of those emails. Accordingly, the court ruled that the defendants’ failure to take any steps “to implement a litigation hold, relying instead on backup tapes that a reasonable investigation would have revealed failed to capture relevant emails deleted manually by individual users,” constituted gross negligence, and warranted a finding of spoliation.

Therefore, the court imposed sanctions in the form of an adverse inference instruction relating to the missing emails, and awarded attorneys’ fees as well as expert costs associated with the review of the defendants’ hard drives.

While admittedly, a trial court decision lacks any precedential value, Einstein amply demonstrates that parties who are sued in state court, even in those states which have not enacted their own set of ediscovery rules, are not immune from ediscovery sanctions. One of our recent posts identified those states which had adopted their own set of ediscovery rules. Outside counsel would be wise to advise their clients of the need to impose a litigation hold in every case in which they are retained, even state-court proceedings, and seek to preserve ESI in state-court litigation. Counsel also would be wise to investigate the client’s email and information systems as well as its paper and electronic retention/destruction policies. Companies and their counsel can no longer safely assume that because a particular state has not enacted its own set of ediscovery rules that the client has no obligation to preserve and produce relevant electronically stored information.

Photo courtesy Flickr user Mike Licht under this Creative Commons license.

View the opinion below or by clicking here.

Einstein_v_357

Avoiding ethical pitfalls of communicating with clients via email

Leor Exploration & Production, LLC v. Aguiar, 2009 WL 3097207 (S.D. Fla. Sept. 23, 2009)

The twentieth century Spanish philosopher and poet George Santayana once wrote: “Those who cannot learn from history are doomed to repeat it.” The Leor decision proves that philosophy is especially true when it comes to the realm of ediscovery. Leor is another example of a growing body of caselaw addressing whether emails sent or received by an employee through his employer’s email server are protected by attorney-client privilege. In a prior blog post we discussed several decisions that have addressed this issue and attempted to reconcile their holdings.

Guma Aguiar was the CEO and Vice Chairman of Leor Exploration & Production LLC (“Leor”). He retained a “trusts and estates attorney” to document his interests in certain entities. Subsequently, that attorney sent an email to Aguiar’s personal advisor and agent, Garrett Smith, who also happened to be the Vice President and In-House General Counsel of Leor, which memorialized a conversation involving the three of them. The email was sent to Mr. Smith’s work email address at Leor. After a series of lawsuits erupted between Aguiar, his uncle and related entities involved in oil and gas exploration, the attorney’s email surfaced in discovery and the issue presented to the court was whether it was protected by the attorney-client privilege.

Leor held that the attorney’s email to his client’s personal advisor and agent was not privileged because the client lacked a reasonable expectation of privacy in emails transmitted through his employer’s (the company’s) email server. In reaching that conclusion, the court identified four factors that should be considered in determining whether an employee has an expectation of privacy in email communications:

• Does the corporation maintain a policy banning personal or objectionable use;
• Does the corporation monitor the use of the employee’s computer or e-mail;
• Do third parties have a right of access to the computer or e-mails; and
• Did the corporation notify the employee or was the employee aware of the use and monitoring policies?

Because each of the four factors were present, the court in Leor had little difficulty in concluding that plaintiff did not meet his burden of establishing the applicability of the attorney-client privilege. However, the privilege belongs to the client not the lawyer, and the decision fails to address how an attorney can waive the privilege belonging to the client without the client’s consent. When the client sends an email to his attorney with knowledge of the four factors noted above, one can argue the client impliedly waived any right to assert the privilege, but the converse is not necessarily true. However, the decision follows the approach taken in Scott v. Beth Israel, and lawyers must take care not to run afoul of the decision.

In our prior blog post addressing this issue, we discussed how some courts have ruled that email communications retained their privileged character when they were encrypted or involved password protected web-based email notwithstanding the fact that they were sent or received via a company issued computer. While that post focused on the duties and responsibilities of a company’s attorney who receives or reviews employee emails, Leor highlights the responsibilities of any attorney communicating with his client via email.

Reasonable communication between an attorney and his or her client is necessary under Rule 1.4 of the Model Rules of Professional Conduct. Rule 1.6 of the Model Rules further requires that an attorney act competently to safeguard confidential information relating to the representation of a client against its inadvertent or unauthorized disclosure. Under Rule 1.6, a lawyer is obligated to take reasonable precautions to prevent information from coming into the hands of unintended recipients. That does not necessarily require that a lawyer use special security measures, such as encrypting emails, where the mode of communication affords a reasonable expectation of privacy. However, special circumstances can require that special precautions be taken.

While the decisions are not uniform in their holding, given the growing body of caselaw addressing the waiver of attorney-client privilege involving workplace email communications, an attorney should consider whether special precautions may be warranted in this scenario, especially if you practice in a jurisdiction where you would have reason to believe a court may find a waiver occurred. An attorney should consider addressing this issue at the outset of any representation with his client. Lawyers would be wise to follow the age-old adage: an ounce of prevention is worth a pound of cure. If the risk of privilege loss is to be avoided, then neither the attorney nor the client should communicate with one another through any email server or by any means in which they lack a reasonable expectation of privacy. While that does not mean that an attorney cannot communicate via email with his client, the attorney should endeavor to avoid emailing the client at the client’s place of business and should consider advising the client to not communicate with him through a company-issued computer, Blackberry or other communication device. Consider alternative methods of communication. While a client may consent to the use of a mode of communication that would be prohibited by Rule 1.6, that consent must be “informed.”

So before you send that next email to a client, stop and assess whether there are any privilege issues implicated by your communication. Don’t let convenience trump confidentiality. Where appropriate, clients should be advised of the risks of communication via company-issued computers or Blackberries in order to avoid a waiver of privilege as in Leor.

Photo courtesy Flickr user Michael Licht under this Creative Commons license.

How the privilege applicable to a lawyer’s litigation hold letter may be forfeited, and the ethical dilemma it potentially triggers – the Morton’s Fork created by Major Tours v. Colorel.

Major Tours, Inc. v. Colorel, 2009 WL 2413631 (D.N.J. Aug. 4, 2009)

Wikipedia defines Morton’s Fork as “a choice between two equally unpleasant alternatives (in other words, a dilemma), or two lines of reasoning that lead to the same unpleasant conclusion. It is analogous to the expressions ‘between the devil and the deep blue sea’ or ‘between a rock and a hard place.’” Wikipedia explains that Morton’s Fork is “the opposite of the Buridan’s Ass.” It is similar to a “Catch 22” in that it involves a “no win situation,” but does not involve the use of circular logic.

What is the only area of law where a lawyer is required, under the pain of sanctions, to write a letter and provide advice to a client that potentially can be used as evidence against that client? Where else is “discovery about discovery” becoming the norm, rather than the exception? The answer is the post-Zubulake world of electronic discovery in which we now find ourselves.

Today, if a lawyer fails to issue written litigation-hold instructions, and/or then fails to take appropriate follow-up steps, the lawyer can be sanctioned if electronically stored information (“ESI”) is not properly preserved by the client. While a lawyer’s litigation-hold letters are generally considered privileged, e.g., Muro v. Target Corp. 250 F.R.D. 350, 360 (N.D.Ill. 2007), the court in Major Tours held that they must be produced when a preliminary showing of spoliation has been made. And, when that occurs, a lawyer’s litigation hold letter will invariably be used against the client as evidence that the client failed to heed the lawyers advice.

The court in Major Tours concluded that a duty to preserve was triggered by a letter sent to the New Jersey Attorney General and the Commisioner of the New Jersey Department of Transportation approximately twenty-two (22) months prior to suit being filed. A litigation hold was not issued until after suit was brought, and the court found it was “probable that relevant evidence was lost before the defendants issued their litgation hold.” Thus, in the court’s view, because a preliminary showing of spoliation had been made, the attorney’s litigation-hold letter had to be produced. In other words, the client forfeited the right to assert attorney-client privilege by failing to issue a litigation hold before the attorney’s privleged litgation hold letter was ever sent to the client.

The rationale applied in Major Tours could trigger an ethical dillemma, and the potential for a conflict for outside counsel in future cases when a duty to preserve ESI was arguably triggered before suit was filed, and the client failed to institute a litgation hold at that time. If the lawyer failed to send a litigation hold letter, the lawyer could be sanctioned. However, if the lawyer sends a hold letter and the court follows the approach taken in Major Tours, the attorney’s privileged communication potentially may become discoverable, and be used as evidence against the client. While a party may be entitled to learn what steps an opponent took to preserve ESI once a preliminary showing of spolilation occurs, finding the attorney-client privilege was forfeited in this scenario would appear to be an ill-concieved approach. It triggers for the lawyer a Morton’s Fork – a choice of protecting himself from sanctions knowing that his advice may potentially be used against the client. Thus, does Zubulake’s requirement that a lawyer issue written litgation-hold instructions inevitably create a conflict between the lawyer and his client?

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An opinion sure to make everyone’s “Top Ten” list of ediscovery decisions for the year

Goodman v. Praxair Servs. Inc., 632 F.Supp.2d 494 (D.Md. 2009)

Near the end of the year, various commentators and bloggers will typically post their list of top ediscovery decisions for the year. While it may be a bit early for predictions, one decision that should make everyone’s top ten list this year is Goodman v. Praxair Services. The decision was written by Judge Paul Grimm who also was the author of the Hopson, Victor Stanley and Mancia decisions. Judge Grimm always seems to be on the leading edge of ediscovery issues.

Praxair is notable for its comprehensive treatment of issues that frequently arise involving the preservation of electronically stored information (“ESI”) and sanctions that can result for the failure to do so. The decision contains more ediscovery law than many book chapters on the topic. Even the most experienced ediscovery practitioner will find some helpful insights in the decision. If there is one ediscovery decision you read this year, Praxair should be the one. The issues addressed by Judge Grimm in Praxair include:

• The trigger date for a duty to preserve
• The timeliness of a spoliation motion.
• Identifying the “key players” to whom the litigation hold should be directed.
• Determining what ESI is under a party’s control.
• Distinguishing the duty to preserve from the duty to produce.
• Ediscovery and small “mom and pop” companies.
• Whether sanctions can be imposed for the spoliation of evidence by an agent.
• State of mind required for spoliation sanctions.
• Four scenarios when costs and attorney fees are allowed.
• Sanctions for unilaterally preserving only the ESI that a party deems relevant.

Judge Grimm even traces the “historic roots” of spoliation to Armory v. Delamirie, 93 Eng. Rep. 664 (K.B. 1722), which he describes as a Dickensian tale of avarice and greed involving a chimney sweep’s discovery of a jewel and a goldsmith’s subsequent attempt to keep it for himself. Because of Judge Grimm’s comprehensive treatment of the issues noted above, we have divided our review and commentary on Praxair into multiple parts that will appear over the next few days on Practical Ediscovery. This first part outlines Praxair’s factual background and addresses when a duty to preserve is triggered.

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Seventh Circuit’s Electronic Discovery Pilot Program

Recently, the Seventh Circuit announced its Electronic Discovery Pilot Program. The program was developed in response to continuing comments by the business community and practicing attorneys about the need to reform the civil pretrial discovery process. It is an attempt to reduce the cost and burden of ediscovery in litigation. What makes the Seventh Circuit’s pilot program unique is that its results will be reviewed and analyzed during the program’s phases.

A series of Principles Relating to the Discovery of Electronically Stored Information (“ESI”) were developed and codified in a standing order. These principles are intended to serve as supplemental procedural ediscovery guidelines for the parties in selected cases. Individual district court, magistrate, and bankruptcy judges in the Seventh Circuit have agreed to adopt the principles and implement them in selected cases during Phase I of the program, which runs through May 1, 2010.

Kenneth J. Winters, the Managing Director of the Sedona Conference®, and former Colorado Supreme Court Judge Rebecca Kourlis, the Executive Director of the Institute for Advancement of the American Legal System (“IAALS”) at the University of Denver, assisted in the development and review of these principles.

IAALS is developing questionnaires to assess the efficacy of the principles. The questionnaires will be completed by the judges and lawyers participating in Phase I of the program. The results of the IAALS’ questionnaires will be presented to the Seventh Circuit at its annual meeting in May, 2010. At that time, the program’s ediscovery principles will be reviewed and refined as needed. Phase II of the program is scheduled to proceed from June, 2010 through May, 2011. It is contemplated that in May, 2011, Phase II findings will be presented and the Seventh Circuit’s final ediscovery principles announced.

Among other things, the principles require in the event of a dispute during the meet and confer process, the appointment of an ediscovery liaison who should be prepared to participate in ediscovery dispute resolution. These principles also recognize that that Rule 26(b)(2)(C)’s proportionality principles should be applied when formulating a discovery plan; provide that sanctions can be imposed for the failure to cooperate and participate in good faith in the meet and confer process; identify categories of ESI, which are generally not discoverable in most cases; and provides that if a party intends to request the preservation or production of these categories of ESI, that such a request be discussed at the parties’ initial meet and confer session or as soon thereafter as practicable.

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