What is a Legal Hold?
When it comes to the eDiscovery stages, legal holds are considered to be among the most vital parts of the process. Even if you don’t know the ins and outs of other technical eDiscovery elements such as data collection, you must be familiar with legal holds as a legal professional. The reason why legal holds are such an important aspect of eDiscovery is that they extend beyond the legal department. Other departments and employees are impacted by this as well.
A legal or litigation hold is a part of the eDiscovery process by which an organization is required to preserve potentially relevant information. When a legal hold is issued, the organization has to notify the custodians about what they are supposed to do and not do.
As per the FRCP Rule 37(e), organizations are responsible for undertaking reasonable actions in order to preserve information relevant to the case. They must be able to prove that reasonable efforts were made to ensure that no relevant data was deleted after the occurrence of the triggering event.
It is important that organizations don’t wait for the triggering event. Instead, they must already have an established legal process along with an eDiscovery solution such as Casepoint that can help prove that they made an effort to preserve the evidence.
Many believe that legal holds are simply a notification sent to the custodians reminding them to preserve relevant information. However, the truth is that it is a complex process that involves multiple steps.
The Legal Hold Process
The legal hold process includes the following steps:
The first step of implementing a litigation hold is determining the potentially relevant information. Depending on the case, it might be a mix of electronically stored information (ESI) and physical documents.
Identification of Information to Be Preserved
Custodians are the individuals who possess the relevant information and are in charge of preserving it. Legal and IT teams need to work together to identify every single custodian relevant to the matter at hand. This also includes identifying “silent custodians,” whose data is preserved without their knowledge.
Identification of Custodians
Once the relevant information and custodians have been identified, a notification will be sent to the custodians informing them about the legal hold. The notice will also specify the information that must be preserved.
Legal Hold Notice Issuance
Reminders must be sent to the custodians to make sure that they remember the legal hold. These notices can also be used as a way for the custodians to acknowledge their obligations.
This is the last step, where the custodians are notified that they are no longer required to preserve the data. It is of paramount importance to ensure a robust release process, to avoid a custodian being released from their obligation when they shouldn’t.
Legal Hold Release
Corporate Legal Hold Policy
Organizations need a corporate legal hold policy that outlines the goals, the steps involved, and every other aspect of the legal hold. It can help them avoid spoliation sanctions.
The aim of establishing a legal hold policy is to ensure preservation through a consistent as well as defensible approach. It’s not only the responsibility of the high-level management and the legal professionals to understand this obligation. The employees, who might be a potential custodian, need to be familiar with this policy as well.
Apart from ensuring data preservation, a legal hold policy can also help your employees understand their responsibility to preserve information and the consequences of not complying with this legal hold obligation.
It’s important to note that when it comes to establishing corporate legal hold policies, there isn’t a one-size-fits-all template. You will have to create procedures that work best for your organization. There are a lot of factors that will impact this, including the industry, organizational hierarchy, retention policies, data architecture, etc.
But, once you have established the legal policy, it will ensure that you are able to fulfill your preservation obligation successfully.
Legal Hold Process Step-by-Step
Getting Started With Legal Holds
As soon as a triggering event has been identified, it is your responsibility to ensure that a legal hold is issued as soon as possible. However, there are a few things you need to know before drafting the legal hold notice:
- The potentially relevant information that must be preserved
- The location of this information
- Relevant custodians
- The scope of the relevant information
In the case of ESI, the IT team can help you find the required information, as well as the custodians. For situations like these, an information governance program is the key. It will help your IT team identify where potentially relevant ESI is located and who is responsible for preserving it.
How to Issue a Legal Hold
Having a streamlined process for issuing a litigation hold is crucial. And while it is recommended to have email templates in place for the same, it is important to note that a legal hold notice must be tailored to the case.
There is no legal requirement for the content and structure of a legal hold notice. However, there are certain best practices that you should follow:
When it comes to issuing a legal hold, timing is crucial or else you might end up getting sanctioned. With the help of a comprehensive legal hold policy and an eDiscovery solution that automates the legal hold process, you can issue the legal hold notice as quickly as possible.
Timing Is Everything
Telling the custodians about the legal hold isn’t considered a reasonable step to preserve relevant information. You have to put everything in writing.
Verbal Notice Doesn’t Count
Not everyone involved in the legal hold will be able to understand the legal vernacular. The job of issuing a notice is to ensure that the custodians understand their obligation to preserve data. The notice should cover the specific information that must be preserved. It should also include the names and dates of the documents, along with relevant examples. The legal hold notice should also include the scope of the matter and provide context on why it is important to preserve.
Clear And Specific Language
Issuing the legal notice is only the first step in creating evidence of your preservation efforts. You will also need acknowledgments from custodians stating that they understand their obligations. You should send them follow-up notifications regarding the preservation as well. It is crucial that you keep track of every action and document everything.
Acknowledgment Is Crucial
Legal Hold Compliance
The only way to ensure that every single custodian is complying with their legal obligation to preserve relevant data is consistent monitoring. Sending them regular reminders and documenting the receipts isn’t enough. You should also organize compliance training sessions where custodians can learn the consequences of not complying with the preservation obligation. This can be a powerful way to ensure compliance.
In order to have an effective monitoring process, you must tailor it to the custodian. For instance, a custodian with technical expertise wouldn’t need as much training to preserve data as a non-technical custodian would. Similarly, a custodian who is familiar with the preservation policies and understands the importance of complying with the legal hold won’t need as many reminders as others.
It is known that issuing a hold notice and relying on custodians solely to comply with the preservation obligations won’t work. It is your duty to monitor and even intervene to ensure legal hold compliance.
Documenting Your Legal Hold Process
One of the main goals of issuing an eDiscovery legal hold is to have a defensible process. This way, you can assure the court that when it comes to preserving relevant information, you have been thorough. No one expects you to be perfect, but your actions should be reasonable enough, given the available information at the time.
In order to prove this, you need to document every step of the legal hold process. This includes when the legal hold was issued, how it was issued, how the custodians acknowledged receipt when the reminders were sent, and when the legal hold was released. You must keep track of every action taken by the custodians throughout the process. To ensure that you document everything, it is recommended that you enlist the help of a legal hold software like Casepoint that automatically logs all the information.
After the eDiscovery legal hold has been issued, all the custodians need to send an acknowledgment of the same. You must keep receipts of these acknowledgments that will help prove that the custodians had an understanding of what their obligations were. It is easy to do this as it can be tracked with a simple email reply.
The reminders sent to the custodians regarding the hold stating the importance of preserving the relevant information must be tracked as well.
Lastly, you must document the release of the hold and the reason for the release.
In order to ensure a seamless legal hold process, you will need the right technology that can record and report these details. But how can you find it? The next section will cover that.
Selecting The Right Legal Hold Software
Legal holds management requires something more powerful than spreadsheets. You need a software that can automate the process for you. There are a lot of solutions in the market that can help you with these. All you have to do is find the right one. Here is what to look for:
The solution should allow you to customize the built-in templates by adding your own messages. This will ensure that you can issue the legal holds as quickly as possible.
With the right solution, you can set reminders, and it will handle the rest.
The software should make it easy for you to issue a legal notice. This also includes adding new custodians or removing current ones.
Easy to Use
To ensure that everything is running smoothly, the software should provide you with real-time updates in a central dashboard.
You need a solution capable of scaling per your needs.
The solution should be able to integrate with your eDiscovery process. This way, when the litigation is at your door, you can easily turn it into an eDiscovery matter.
Hopefully this article helped you understand the meaning of a litigation hold and how it can be established in a corporation or law firm. Legal hold can be a complex process containing multiple moving parts. Without the right solution, such as Casepoint, there are a lot of opportunities to make mistakes. The surest way to ensure that your legal hold process is a success is to prepare yourself. This means investing in creating a robust legal policy and an eDiscovery solution that can support it.