What is a Legal Hold? An Overview of the Litigation Hold Process

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.

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.

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.

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.

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.