The Legal Hold Process
In theory, the Legal Hold process is exceedingly simple: a Legal Hold order is sent by the organization’s legal department to “custodians” (employees or others who are in possession of data relevant to the case in question), after which the custodian makes sure that this data is preserved. By doing this, no relevant data is lost to deletion or destruction, and no evidence is lost.
In practice, there are a lot of questions that need answering along the way, and although the theory is straightforward, reality is often anything but. Having a Legal Hold policy in place that you can run consistently and defensibly can be challenging. When it comes to executing these policies, ensuring that it is able to withstand scrutiny and stress is key.
When do Legal Hold orders need to be sent?
As discussed in the previous section, Legal or Litigation Holds ought to be activated when litigation commences, or can be anticipated. Legal cases don’t typically materialize out of thin air, so the organization’s legal team should be able to prepare accordingly. Mounting tension with a supplier, competitor or disgruntled employee, past or present? Best to begin preparing for litigation by sending out hold orders to the custodians who have relevant data in place. The Legal Hold process should simply start as soon as reasonable, to avoid being caught by surprise and getting hit with sanctions or adverse jury inference during litigation.
Who sends legal hold notifications?
In theory, Legal Hold notifications are sent out by a company attorney. In practice, it is commonplace for organizations to be involved in a multitude of legal matters at the same time, with each case having at least one, but usually multiple Legal Holds attached to them. As a result, though the notifications will carry the company attorney’s name, the sending of notifications is usually a team job, especially since the day-to-day management of Legal Holds doesn’t require extensive legal training or experience. This team can be staffed by either eDiscovery managers, paralegals or other litigation support or compliance personnel. Of course, it is important that team members have a solid understanding of the nuances of the Legal Hold process itself.
Who should these Legal Hold notifications be sent to?
In overviews of Legal Hold, the receivers of the Legal Hold orders are glossed over, or are hidden behind the phrase “anyone who might possess relevant data.” As part of the eDiscovery process, the legal team in charge of handling the eDiscovery investigation will create a list or overview of possible data sources (custodians). Oftentimes, they will work with the IT department, in order to find out who these sources are and exactly where their data resides. This is an ongoing process, and as it progresses, more custodians can de discovered, who should then be sent a Legal Hold notification. For a more in-depth overview of the entire eDiscovery process, please consult eDiscovery 101, in which the goings-on surrounding the Legal Hold process are discussed in detail.
What are the contents of a Legal Hold notification?
Since Legal Hold itself isn’t a legal requirement, Legal Hold notifications have no mandatory content either, so long as the goal is achieved. Clear, succinct communications with custodians is important, to make sure all recipients understand what is asked of them, what data they need to preserve, and how to get in touch with the legal team if they have questions regarding the notification or their role.
When it comes to specifying what data should be preserved, it is usually smart to include date ranges, names, and key terms associated with the case. Also, make sure custodians understand what types of data you want them to preserve. Legal hold notifications aren’t just for email, so be clear (and, if possible, specific) about the data types you’re asking them to preserve.
How can I be sure custodians comply with a Legal Hold order?
The whole point of having a Legal Hold process in place is to ensure that the preservation of evidence is manageable without having to babysit every individual piece of potentially relevant data. As such, a sound process has ways to track custodian compliance, by allowing (or requiring) custodians to acknowledge notifications, and having a reminder system in place for stragglers. Additionally, having a procedure in place for dealing with unresponsive custodians is important to have a sturdy and defensible process.
Does a solid Legal Hold procedure ensure data preservation?
Generally speaking, having a solid Legal Hold procedure in place creates a system through which defensible results can be produced, but that doesn’t mean it will. As determined by Judge Scheindlin in Zubulake, the onus for data preservation lies with the defendant. That means that if a key custodian is unresponsive, or worse, non-compliant with the Legal Hold Order, in the eyes of the court that means that the defendant hasn’t preserved evidence properly. With this in mind, it’s usually wise to go after the most important custodians (the ones who hold data that will surely be important) first, as to avoid any issues.