Ensure the Validity of the ESI You Collect With These Legal Hold Basics
As you are no doubt aware, a legal hold is one of the first (and important) stages of the eDiscovery process. Even if you aren’t familiar with some of the technical aspects of eDiscovery, chances are good that if you are in the legal field, you have at least a basic idea of what a legal hold is and how the process works.
Things get tricky, however, when it comes to effectively overseeing the legal hold process. After all, there are a lot of moving parts involved, plus a lot of people who may take part in the process. The risks involved are great too – a poorly executed legal hold can result in spoliation of evidence, massive business disruption, and ultimately leave a business vulnerable.
Whether you are an in-house counsel that is defending your company from a potential lawsuit or a firm issuing a legal hold, there is a lot that you need to keep in mind. Here are some of the best practices related to a legal hold performed during eDiscovery.
1. Establish Comprehensive Notification Protocols
The core of a legal hold relates to the notification protocols that have been put into place. These notifications have to be distributed in a timely fashion and to all relevant parties. Notification protocols should include:
Triggering events should be well-defined to determine when legal hold notifications should be sent out to your organization. Active litigation is not the only event that could potentially trigger a legal hold — it is only the most common. A legal hold may be triggered during a government investigation, an audit, or the reasonable anticipation of litigation in the future. In other words, if you have reason to believe that you may soon undergo litigation (say, if your company made a product that was later found to be defective), it’s in its best interests to trigger a legal hold. Of course, there is a gray area regarding when a legal hold has to be triggered and what constitutes “reasonable anticipation.” Because of this, it’s generally better to err on the side of caution. Instituting a legal hold before it is strictly necessary does not come with any substantial risks.
Even for small companies, it’s often impossible for one person to carry out a legal hold by themselves, which is why we have custodians. It’s ultimately these custodians who will be responsible for ensuring that data is not destroyed or deleted following the legal hold. The more clear the custody of information is, the easier it will be to control the preservation of that data. When it comes to larger organizations, there may be quite a few custodians that need to be involved. This can include third-party vendors that may have had access to data, in addition to former employees who may have still retained or been aware of data. In fact, a third party expert, especially one that specializes in eDiscovery and legal holds, can typically make the process faster and more efficient.
Not every individual will be familiar with the process of a legal hold, even though they will ideally have been trained in the process and its responsibilities. Notification templates should be used to outline exactly what is expected of the custodians in the event that a legal hold is initiated. These templates should be very clear in the responsibilities of the individual to preserve and protect relevant data. It should outline exactly which documents need to be kept and which records associated with them, such as meta data, have to be preserved. The more detailed the notifications are, the less likely there are to be issues later on.
2. Gather Feedback from Involved Parties
Modern data sets are incredibly unwieldy and difficult to manage. The day-to-day operations of an organization can further obfuscate the availability of data and the controls that are in place to ensure that the data is preserved. The best way to ensure the fidelity of operations is to get feedback from those who are directly involved in the maintenance and management of documentation. This often means consulting directly with custodians regarding the best methods of document storage and retrieval.
Not only will feedback improve upon the legal hold process, but it will also aid the custodians in becoming more engaged. Custodians will develop a more thorough understanding of legal hold basics and protocols by participating in their development. They will be more aware of the documents that need to be stored and retrieved because they, themselves, will be reporting on the best methods of retrieval. They will also be able to easily identify and help resolve potential roadblocks that could occur later on.
3. Provide Documentation for Every Step of the Process
It isn’t enough to provide documentation about the protocols of the legal hold. Documentation also needs to be enforced throughout the actual process of the legal hold. This means logging when notifications were sent out when they were received, and which actions were taken during the legal hold itself. Both the legal department and the custodians must be able to show exactly when the legal hold was initiated and what the consequences of that legal hold were.
In addition to this, documentation should be used to thoroughly note any failings of the legal hold process, such as documents that may have been destroyed inadvertently after the legal hold was initiated. There can be mistakes in any organization, especially an organization that is not familiar with these particular protocols. Documenting incidental issues or miscommunications will make it easier down the line to show an earnest attempt at compliance.
4. Leverage Technology for Automation and Control
The right technology can make all the difference when it comes to a legal hold. A legal hold requires that data be immediately locked down. Technology can be used to facilitate this in multiple ways. During the notification process, technology can be used to automate the notifications that are sent out to custodians. During the actual legal hold, technology can be used to automatically enforce the legal hold on digital documents throughout the organization. This provides far superior control mechanics than simply notifying custodians. By locking down digital documents, an organization and its legal team does not need to rely upon the individual compliance of employees.
Document management systems and specialized software, like iConect’s Xplorer, make it easier to initiate holds and collect documents. With as much data that’s currently stored on servers, it can be otherwise prohibitively difficult to ensure that all data remains preserved. In many systems, there may even be automated services which clean out emails or delete older files. By integrating technology early on, the legal team can ensure that these processes can be halted and the appropriate documents can be preserved.
5. Revisit Your Legal Hold Processes and Training Periodically
IT infrastructure changes quite frequently, as do document management processes. Because of this, legal hold protocols frequently need to be adjusted. Employees will need to be trained on the new protocols on a regular basis. At the same time, the organization should look to improving their legal hold processes and finding new technologies that may be able to benefit them. With each new iteration of a document management system, the legal hold processes may be forced to radically change.
Custodians will also be frequently changing, as third-party vendors may enter and exit and new employees may be brought on board. New vendors will need to be educated on legal hold processes and regular training procedures will be necessary to ensure that all parties are on the same page. This both ensures cohesion and opens up the possibility of improving processes.
6. Consult with a Litigation Support Partner
A litigation support partner operates as an essential resource during the process of litigation, from the 26(f) conference to exhibit preparation. When developing and revising your legal hold strategies, these experts will be able to educate you on best practices and potential issues for your unique situation. They can review your current infrastructure to help you identify your custodians, control your data, and potentially find software solutions that can make the process easier.
From developing documentation standards to creating an employee training program, litigation support partners are able to help you develop a legal hold strategy for all levels of your corporate environment. However, that’s only one distinct subset of the support that they provide. Litigation support providers are also able to advise and consult on all areas of litigation, working directly with an in-house legal team to devise the best strategies and provide for the best legal outcomes.
Though a legal hold may be a relatively simple concept, it can become quite complicated in practice. Due to the sheer proliferation of data throughout an organization, legal holds have to be incredibly comprehensive and well-planned. From first identifying the need for a legal hold to distributing the legal hold throughout the company, an organization needs to be able to maintain tight control of its processes. Automated services, document management technology and a reliable litigation support partner can help.