Ultimate Guide to Legal Hold: Software & Process

A legal hold is a key part of the eDiscovery process that involves the entire organization and ensures the protection of relevant information. All the custodians in the organization are notified about the legal hold. They are required to not get rid of any physical documents or delete ESI relevant to the case. This ensures that any information relevant to the case is protected until the matter is resolved or the data has been collected for review.

Under the FRCP Rule 37, organizations are required to undertake reasonable actions in order to preserve relevant information when they are anticipating litigation or any formal dispute. They must be able to prove that reasonable and good-faith efforts have been made to ensure that data is not deleted. In order to do this, organizations need to have a legal hold process along with a legal hold-specific tool, like the one integrated into the eDiscovery platform from Casepoint. It offers automated notifications, custodian management, and communications inside a secure, cloud-based solution. It is a powerful tool that can manage everything from data collection to preservation.

Legal Hold, an integral aspect of Casepoint’s eDiscovery platform, requires an understanding of legal as well as technical requirements in order to navigate the preservation obligations. And while it might seem like it is as simple as sending a notification to the custodians telling them to preserve information, it is a multi-step process. Let’s learn more about this.

It is best to have a streamlined process along with email templates in place to make the process of issuing legal holds efficient. This has to be a thoughtful document that is tailored to the case. The Cloud  Collections process of Casepoint eDiscovery software reduces risk and saves time. It offers a direct collection of data and documents, without the need for any usernames or passwords. This is a simple, secure, and powerful collection technology.

There aren’t any specific legal requirements for the content or structure of a litigation hold. However, there are certain practices that should be followed while drafting a legal hold:

No Delays

The standard for starting the preservation obligations is the reasonable anticipation of litigation, which many consider being quite ambiguous. Instead of waiting for litigation to begin, it is best to develop a process that identifies the trigger event and uses that to issue the legal hold. For instance, if a company has discovered a defect in their products that might lead to injuries, it is reasonable to assume that litigation will soon follow. In such cases, it is best to issue a legal hold as soon as possible.

Have a Strategy for the Interviews

All the custodians have an obligation to preserve relevant ESI, including those who weren’t directly involved with the central issues but had a passing interaction. The legal teams are required to conduct an investigation and evaluate the relevant circumstances to scope out the legal hold in terms of data sources and relevant custodians. One way to get the necessary information quickly is through custodian interviews. These interviews should include precise questions that reveal information that can be acted upon easily.

Set Reminders and Escalation Schedules

After the information and custodians have been identified and the notice has been sent out, the next step is monitoring compliance. The exact way to do this will vary depending on the organization. However, the standard procedure involves sending reminder notices regularly, especially for matters that require data preservation for a long period of time. If there are any changes to the information that is required to be preserved, the same should be communicated to the custodians systematically. But, if they are ignoring the notices, updates, and reminders won’t do much good. In such cases, an escalation notice can be quite effective. It is sent to the direct supervisor of the unresponsive custodian, alerting them that the failure to preserve data exposes the organization to risk. The escalation notice will also request immediate intervention.

Use Templates

Consistency is key to legal holds. This is applicable to initial notice, interview questionnaires, and all reminders. It is crucial to keep the language simple so that all the custodians, especially the ones from the non-legal departments, are able to understand everything. Find a format that works and stick with it. It will streamline the process and eliminate the need to recreate each notice. With every notice, custodians will get accustomed to the communication, which will lead to improved compliance rates.

Document Everything

In order to ensure that the process of legal hold is defensible, it is imperative to track every action consistently. This includes every step that was taken, sent emails, received acknowledgments, follow-ups, key decision points, process milestones, etc. Having good documentation will make it easy to demonstrate the reasonable and good-faith implementation of the legal hold process. The documentation doesn’t have to disclose legal analysis or strategy, just the mechanics of the process.

While the legal hold process appears to be quite straightforward, the devil is in the details. Legal teams often encounter legal hold challenges that require proactive planning and flexibility. Here are a few of the challenges to prepare for while issuing the legal hold:

Overlapping Legal Holds

Tracking the custodians can be stressful and exhausting, especially in a large organization that has multiple active legal holds simultaneously. Some of the custodians will be on more than one legal hold. Moreover, after a legal matter has been closed, the associated custodians can’t be released from their obligations, or else preservation efforts tied to other matters might be jeopardized.

For this, what the organization needs is a tracking system that can indicate the holds associated with each custodian. Now, the old way to do this is through a spreadsheet. But, companies are now opting for more advanced legal hold systems that have automated tracking and built-in controls for alerting or disallowing the users from releasing custodians involved in active matters.

Cross-border eDiscovery

The legal system in the United States emphasizes more on gathering evidence than some other nations. In the case of international cases, issuing a standard legal hold might violate the country’s privacy and data protection laws. To mitigate this risk, it is crucial to tailor the hold so that it is consistent with the local and regional rules. For instance, the hold might give the option of redacting any personally identifiable information.

In case an employee switches positions, moves offices, leaves the company, or goes on extended leave, the legal hold might become ineffective. Enforcing compliance will become even more difficult in a geographically dispersed organization. To deal with this, the legal team can work alongside the HR department to get employee status change information immediately.

Dealing with unresponsive custodians can be frustrating. But, it is an almost unavoidable part of the legal hold process. It is important to remember that custodians are regular employees with day-to-day responsibilities, and they might not be invested in the legal affairs of the company. There are certain practices to improve the compliance rates, including simple notifications, a consistent reminder schedule, and escalation notices.