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Responding to Litigation Hold Notices

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The purpose of a litigation hold is to preserve relevant information when an organization reasonably believes this information can lead to an investigation or litigation. The information to be preserved can be documents, equipment and/or electronic information or materials that may be relevant to a lawsuit or an investigation, depending on your industry. If relevant documents or information are lost, altered or destroyed, the company could suffer serious legal consequences.

The spoliation of evidence is “the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding.” The maximum penalty for destroying or concealing evidence is either six months in a county jail or a fine up to $1,000, or both. For example, spoliation can occur when documents are shredded, emails erased, physical evidence is sold, destroyed or hidden and otherwise rendered unavailable for trial. It is the company’s duty to take all reasonable steps to preserve potentially relevant information.

The risk professional’s role is vital—he or she may be aware of an incident that might give rise to a claim or suit, well before a suit is filed, sometimes even a year or more. For example, if you receive an incident report that a third-party vendor fell on your property, you would call security to see if there is video of the incident, and if so, secure a copy of that video. You would interview any witnesses, preferably on the day of the event while memories are fresh, and document the incident in their words. If the victim alleges that something caused the fall, then you should take photos of location and determine whether the pavement was wet or dry, there was debris in the aisle, what the weather conditions were, and other considerations. Once you complete the investigation, all documentation should be stored and secured.

If there is a claim that is either in a lawsuit or the company believes could later become a lawsuit, the clock starts ticking on litigation hold notices. In the United States, the law requires that companies comply with their duty to preserve evidence. Evidence is broad and can include an automobile involved in an accident; emails; a chair involved in a slip and fall; videos, voicemail, photographs or text messages; among others. The notice can involve official company files, personal files or non-official files. All information that may be relevant to the matter must be preserved.

Preserving potential evidence that the company believes may reasonably lead to a lawsuit or investigation takes a coordinated effort that can involve legal, risk management, IT, HR, compliance, engineering, security and any other department.

If you are an employee who may have information pertinent to investigation or lawsuit, you would be considered the custodian of this information and would have a legal obligation to preserve such evidence. As custodian, the legal department or possibly a third-party administrator would instruct you to preserve the evidence. The general procedure is that you would receive a notice on a matter that could be involved in an investigation or a lawsuit. You will be required to review, comply, sign and certify a document that states you agree to preserve information that would be related to the event. There may be a requirement to return signed document within a certain amount of time from receipt, and violation may result in disciplinary action that can include termination.

The evidence required may be very specific (such as video recorded on this date), or general (like all related emails), and may include a date range. Once identified, do not destroy, alter, modify or delete documents subject to the hold notice. When the lawsuit or investigation is completed you will receive a termination and release of this obligation. The evidence may be saved as part of the company record retention program.

Risk management can play an important role in this process by storing the hold notice in the claim file, periodically reminding custodians of their obligations, involving and sending new notices for new custodians that might have evidentiary material, and notifying custodians of termination of hold notices.

How to Make the Most Out of 2021’s Virtual Conferences for Rising Risk Professionals and Employers

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Amid a second wave of the COVID-19 pandemic, people around the world are going back into lockdowns or rolling back phased reopenings, and it appears remote work arrangements and virtual events will continue to be the norm for many. Throughout the pandemic and now, moving into 2021, these shifts have prompted serious consideration about what it means to connect at work and how to build and maintain relationships in your professional network without seeing people in person.

As the job market remains in flux from the pandemic, this is a particularly pressing concern for students, early-career professionals, and others who are just establishing themselves in the risk profession. To that end, insurance and risk management student organization Gamma Iota Sigma has composed virtual conference guides for both students and employers to make the most out of the growing number of virtual recruitment and networking events.

According to Grace Grant, the organization’s executive director of chapter operations, Gamma Iota Sigma created the Virtual Conference Guide after roundtable discussions with a range of industry and professional association partners regarding student engagement, recruitment and collaboration amid the pandemic. “Throughout the course of the summer, nearly 30 different groups participated in these discussions where we discussed lessons learned and opportunities we were facing in light of the COVID-19 pandemic,” Grant said. “Because many of our partner organizations also host annual conferences, and everyone was pivoting to a virtual option, it became apparent that both students and employers would benefit from a best practices guide for virtual conference attendance.”

“For an industry that is largely centered around business relationships, the pivot to virtual a conference season presents a challenge, but also opportunities,” said Alyssa Bouchard, vice president of industry engagement at Gamma Iota Sigma. “While virtual engagement can’t always take the place of face-to-face engagement, it does allow for increased access. Virtual conferences have lower registration fees in many cases.


They have no associated travel costs or commitments. For some, the lack of business travel or daily commutes in our virtual environment means more time in the day. Collectively, this creates a big opportunity for rising risk professionals to pursue career development opportunities which might not have previously been an option but are now right in front of them—literally. It is a great time for rising risk professionals to participate in industry conferences and events to expand their industry knowledge and networks.”

For rising risk professionals looking to seize those expanded opportunities via virtual conferences and events, click here for the Virtual Conference Guide for Students.

On the day of the event, some of the key tips for students include:

  • Prepare your space. Find a quiet and comfortable space for attending the conference. Make sure you have all necessary technology and information within reach. Set up a neutral and professional background. Be aware of personal items that may show in your screen. Make sure your space is well-illuminated so conference attendees can clearly see your face during video interactions. Have water and a snack nearby so you can refuel when needed!
  • Check your Wi-Fi bandwidth. If possible, sit close to the router. Turn Wifi “off” on unused devices to free up bandwidth. If needed, ask your housemates to refrain from streaming during the event.
  • Dress to impress. Wear head-to-toe professional attire that is reflective of your professional brand and leaves conference attendees with a good impression. Some conference hosts will specify a recommended dress code for the event. If not, wear business professional attire.
  • Minimize distractions.
    • Close other tabs on your computer. Turn off notifications on your phone and other devices so you can focus on the conference.
    • Notify members of your household that you are participating in a virtual conference to better manage potential disruptions.
  • Build your network. Many virtual conferences will host virtual networking lounges, interest groups, chat rooms or other opportunities to meet attendees. Leverage these opportunities!
    • Virtual conferences offer a variety of communication methods to connect with other attendees. If you have meetings scheduled, confirm whether they are text, audio, or video meetings before joining the meeting.
    • Don’t be afraid to reach out and introduce yourself to other conference attendees. Share your elevator pitch when joining new conversations.
    • Be aware of your audience and know whether the chat is one-on-one or a group conversation.
    • If you plan to reconnect after the event, establish the best way to do so before signing off.
  • Keep a list of action items. How will you use the information you’ve acquired at the conference? Keep a list of to-do items for after the event. For example, 1) Submit online application for internship at ABC Insurance Company, 2) Follow up with Sheryl on offer to job shadow, 3) Review XYZ Brokerage’s career brochure, 4) Conduct additional research on product recall insurance.

For companies looking to recruit the next generation of risk professionals, click here for the Virtual Conference Guide for Employers.

For example, on the day of the event, GIS advised employers to:

  • Be proactive. Don’t wait for students and candidates to come to you! Find ways to actively engage conference attendee in the virtual lobby, lounges, and sessions. If a candidate visits your booth, give them a warm welcome.
  • Facilitate informal networking opportunities. Encourage attendees from your company to hang out in the virtual networking lounge, interest groups, or chat rooms when they’re not scheduled to be somewhere else. This will allow them to engage with students and/or potential candidates in a less formal setting.
  • Identify next steps. If speaking with a booth visitor or interviewee, clarify action items following the conference. Do they need to complete a job application? When will they hear back from you about a second-round interview?

    How can they find more information about your organization and/or opportunities?

After COVID, Cyberrisks Top Agenda for Risk Professionals in India, Marsh and RIMS Report

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For risk professionals in India, the COVID-19 pandemic has underscored the critical need to build business resilience and develop mature yet flexible business continuity plans to address both short- and long-term threats. In the new Marsh and RIMS report Excellence in Risk Management India 2020, Spotlight on Resilience: Risk Management During COVID-19, 63% of risk professionals in India said a new pandemic or continued fallout from COVID-19 was a top risk facing their organization, followed by cyberattacks (56%), data fraud or theft (36%), failure of critical infrastructure (33%), fiscal crises (31%), and extreme weather events (25%).

This mix of top risks illustrates the critical task before risk professionals heading into 2021: ensuring capability and procedures to respond to fast-emerging disasters, while not losing sight of the critical work to boost baseline resilience against foreseeable risks across the enterprise.

“Organizations need to balance their focus between longstanding and emerging risks,” said Sanjay Kedia, country head and CEO of Marsh India. “While there has long been an awareness of weather-related risks, low-frequency risks generally receive less attention. The pandemic has underlined the need for risk managers to keep all perils on their radar.”

Indeed, Marsh and RIMS found risk assessment and modeling are critical gaps for India-based risk professionals to focus on to mature their risk management programs. “As businesses recover from COVID-19, many senior leaders are shifting attention to questions of resilience.

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But, as our survey shows, the use of advanced risk management techniques in India remains limited—for example, more than one-fifth of respondents do not assess or model emerging risks,” the report noted.

This is particularly the case with emerging cyberrisks. Cyberattacks and data loss or theft ranked among the top three threats, and the pandemic escalated the already rising number of cyberthreats to companies in India with the shift to remote work, online business, and ransomware attacks. Indeed, the report noted that the pandemic led to a surge in cyberattacks against Indian companies, with New Delhi among the top 10 most often attacked cities with regard to ransomware in 2020, and more than a third of Indian respondents to a June survey by Microsoft reporting they had fallen prey to a pandemic-related phishing email. Yet only a third of respondents to the Marsh/RIMS report said they model potential cyber loss scenarios, and only 26% plan to do so in the next year. Key cyberrisk management measures and the rate of implementation among Indian companies include:

Whether it is phishing attacks on employees or internet outages interrupting operations in the supply chain, the report notes that the next major event for Indian companies could well be a cyberattack. Focusing on building cyber resilience was one of the report’s four key recommendations, noting “organizations should shift their focus from solely trying to prevent an attack to accepting the inevitability of a cyber event and taking action to mitigate its effect.”

The report’s other top recommendations for risk professionals in India were:

  • Regularly review existing business continuity plans – “Companies should carefully review and refine their business continuity plans. They should ensure their plans enable them to respond effectively to threats that bring short-term pain and long-term and widespread challenges, as is the case with COVID-19.”
  • Embrace the changing working environment – “Lockdowns intended to stem the spread of COVID-19 required many companies to quickly move to remote working, change their business models, and implement new safety measures upon return to the workplace. Other perils, like a natural disaster, could necessitate and precipitate such shifts, even if shorter in duration. Businesses should invest in structures that allow employees to work remotely effectively, efficiently, and safely and should educate employees on new ways of working under changing circumstances.”
  • Remap and remodel your supply chain – “The COVID-19 pandemic emphasizes the need to re-examine supply chains regularly, with special focus on understanding the resilience and reliance of vendors. Companies would benefit from understanding their vendors’ ecosystems; both to provide a clearer view of how they could be affected by different risks and to review contracts to better understand liabilities.
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Moving forward, there is considerable room for risk professionals to be more involved in scenario analysis and strategy

In December, RIMS introduced additional resources specifically for risk professionals in India looking to elevate their risk practice. The report was released around the recent RIMS Virtual Risk Forum India 2020, which brought together hundreds of risk and insurance professionals from across India and around the world. Soon thereafter, the risk management society also announced the official formation of a RIMS India Chapter.

“The exchange of knowledge and experience drives the risk management profession, allowing practitioners to more effectively enhance corporate decision-making, strengthen resiliency and leverage new and exciting opportunities for their organizations,” said Roop Kumar, chief of risk at SBI Life and inaugural president of the India chapter’s board of directors. “RIMS India Chapter will quickly become an exceptional resource for all business leaders. We look forward to delivering cutting-edge risk management insight to support our members as they advance their programs and their careers.”

Other members of the inaugural board of the India chapter include: Keerthana Mainkar, head ERM at Infosys; Amol Padhye, head of market risk at HDFC Bank; Amber Gupta, head legal and corporate secretary at Birla Sunlife Insurance; Anand Shirur, CEO of Digitangle Consulting PVT, Ltd; Steward Doss, associate professor at National Insurance Academy; Monika Mittal, professor at BIMTECH; Shibyanshu Sharma, vice president of risk management at SBI Life; and Yogesh Ghorpade, head of ERM and insurance lead at Thermax Industries.

“RIMS India’s Board of Directors truly represent a cross-section of the country’s risk management community,” said Gopal Krishnan K S, head of RIMS India Operations. “The Society looks forward to learning from their unique experiences and welcoming others to contribute so that, together, we can develop the highest standard of risk management education to address corporate India’s biggest concerns.

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PAID Act Becomes Law, Fixing Medicare Secondary Payer Flaw

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On December 11, the Provide Accurate Information Directly (PAID) Act was signed into law as a part of the funding bill to keep the government running. A top priority of RIMS Advocacy since it was introduced in 2019, the PAID Act will fix a current flaw in Medicare Secondary Payer (MSP) compliance. Specifically, the PAID Act amends 42 U.S.C. § 1395y(b)(8)(G) to require that the Centers for Medicare and Medicaid Services (CMS) expand its Section 111 Query Process to identify whether a claimant is currently entitled to, or during the preceding 3-year period has been entitled to, Medicare Part C (Medicare Advantage) and/or Medicare Part D (prescription drug) benefits. If so, CMS is then required to provide the names and addresses of any such Medicare plans through the Section 111 Query Process. Included in the bill is a one-year implementation provision that requires the fix to go live by December 11, 2021.

The bipartisan bill was introduced in 2019 by Republican Senator Tim Scott of South Carolina and Democratic Congressman Ron Kind of Missouri in the House of Representatives. “Today, the PAID Act has taken a pivotal step closer to becoming law, filling in Medicare-related potholes that have cost seniors, Main Street job creators, and the American taxpayer millions of dollars over the years,” Sen. Scott said when the bill passed. “Decades-old regulations and bureaucratic red tape have caused confusion and avoidable litigation in the MSP for far too long, and by eliminating those problems we can help seniors and families across the country.”

The fix in the PAID Act will essentially settle the increased number of lawsuits that have been filed by Medicare Advantage Plans asserting recovery rights against insurers, including claims for “double damages” under Medicare’s private cause of action provision. If CMS provides settling parties with the name and identity of the plan and the dates of coverage, they can better resolve and repay MSP liabilities associated with settlements, judgments or awards. With these changes, there will be a more efficient solution for beneficiaries, taxpayers and employers.

Proponents of the PAID Act assert, in part, that this legislation will now help insurers better identify and address potential Part C and/or Part D recovery claims by allowing them to obtain entitlement and plan information in a more programmatic manner using Section 111’s Query Process.

Currently, there is no such centralized process or system for insurers to obtain this information. When an applicable plan submits the required query process data elements to CMS, if the queried individual is identified as a Medicare beneficiary, the query response only confirms that they are enrolled in Medicare. It does not provide any information as to the “type” of Medicare program in which the individual is enrolled. The PAID Act will change this to better identify whether a claimant is enrolled in Medicare Advantage and/or Part D.

The text of the PAID Act states that CMS must provide the following information to the applicable plan through the Section 111 Query Process:

    (I) whether a claimant subject to the query is, or during the preceding 3-year period has been, entitled to benefits under the program under this title on any basis; and (II) to the extent applicable, the plan name and address of any Medicare Advantage plan under part C and any prescription drug plan under part D in which the claimant is enrolled or has been enrolled during such period.

With the PAID Act now law, RIMS will monitor the CMS implementation process and provide feedback as needed. RIMS worked closely with the Medicare Advocacy Recovery Coalition (MARC) to support their efforts to get this bill passed. Check out their infographic on the Medicare issue the PAID Act should fix: