Critical steps to creating a consistent: preservation hold process.

Author:Vestuto, Richard

Many organizations struggle to develop a cost-effective and defensible hold process. This article provides six steps to help organizations plan, automate, and communicate a legal hold process that will improve efficiency, reduce risks, and meet their preservation obligations.

Any organization subject to large, complex, high-stakes lawsuits or investigations requires a repeatable process for preserving potentially relevant electronically stored information (ESI). Yet for many organizations, the preservation process is often chaotic, time-consuming, and error-prone. This is often because they rely on disparate technologies or manual processes to support preservation efforts, with potential mistakes occurring due to poor coordination and sloppy hand-offs. These errors are frequently amplified by the many complexities and challenges that can complicate preservation efforts.

One such challenge is dealing with employee status changes. Employees go on leave, move to new positions or different business units, or depart the organization altogether. While employee movement is a routine element of modern business life, it takes on critical significance in the context of e-discovery, where failing to properly track employees can result in data spoliation and severe sanctions.

Having a legal hold process that preserves data throughout the e-discovery life cycle--from initiation to release and data deletion--is critical. This article walks through several critical steps for creating a consistent preservation hold process.

Step 1: Understand the Legal Hold Life Cycle

At its most basic level, a legal hold is a form of notification, often an email, informing the recipient that a lawsuit has been commenced or is reasonably anticipated and that the party receiving the e-mail must preserve all data potentially related to the subject matter of the case.

While the basic process of issuing, monitoring, and documenting legal holds is fairly similar across many organizations, priorities for preserving ESI vary depending on the organization's size, type, and industry. Large organizations typically have hundreds or thousands of employees that are dispersed geographically and spread among a number of business units. The legal team needs to be able to create, acknowledge, and track legal holds efficiently. Simply sending out a legal hold notification e-mail does not equate to a defensible process.

Basic Steps

Following are basic steps organizations should consider to help ensure a defensible preservation process:

  1. Confer with key stakeholders, including information technology (IT) and human resources (HR), to confirm that every person related or potentially related to the legal matter understands the scope of the preservation obligations.

  2. Suspend any automatic deletion or purging of e-mail and other key information systems by taking these actions:

    1. Pull current backup tapes from rotation or recycling to ensure data is preserved without risk of spoliation.

    2. Identify any laptop/desktop backup routines running on a scheduled basis and archive the most recent backups.

    3. Stop recycling or reissuing hardware.

    4. Stop purging user accounts and individual network shares for departed employees.

  3. Issue legal hold notices when litigation is reasonably foreseeable, which is usually before notice of suit is given.

    1. Write the notice in "plain English," describing the nature of the matter and the issues at hand.

    2. Give clear instructions to employees not to modify, destroy, delete, or hide any electronic or hard copy data related to the commenced or anticipated litigation or investigation, including all paper or ESI, other data stored on the company's computer systems and storage media, or any other electronic data.

    3. Take steps as early as possible to preserve data from user-assigned laptop/desktop computers and mobile devices.

  4. Interview the key players subject to the legal hold to confirm they understand their legal obligations as well as to get their help identifying other employees or data that may be subject to the preservation obligation.

  5. Remind employees of their preservation obligations on a regular schedule to facilitate compliance.

    The legal hold must remain in place until final disposition of the underlying matter.

  6. Release the hold as soon as the underlying matter is resolved. This allows the electronic evidence to be deleted according to the company's regular retention policies, assuming it's not subject to preservation obligations on another matter.

    Key Stakeholders

    Legal holds occur at the very crossroads of an organization's people...

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