The end of the year is a great time to take stock of what’s worked, what needs improvement, and what needs a full HGTV-style renovation. Legal holds, that routine-yet-critical function of any corporate legal team, is worth including in your audit.
After all, legal holds are the first step of traditional ediscovery and ensure that evidence is preserved for downstream processes such as collection, processing, analysis, and review. So, it makes sense to check in on your processes and systems from time to time to ensure that everything is as streamlined as possible, and, of course, completely defensible.
When and How to Initiate a Legal Hold
Let’s say a trigger event has occurred and you can now reasonably anticipate litigation. Start by determining what type of data is likely to be important. For example, in the case of an injury, video evidence showing the incident could be critical. This is also the sort of evidence that typically gets overwritten within a few hours or days if not flagged for preservation.
Once you have identified likely evidence sources, notify custodians about their duty to preserve evidence. But, since most employees aren’t legal experts, notices should be clear, understandable, and easy to act on. They should also require your custodians to acknowledge their compliance with the hold.
- Draft templates ahead of time to expedite the notification process
- Communicate legal holds to IT personnel, advising them of any data that should be exempted from routine deletion protocols
Don’t Forget to Release the Legal Holds
One key step of your legal hold strategy should be to formally release the holds once the related matter concludes. This ensures that outdated information can be deleted in accordance with standard retention protocols, reducing storage costs and avoiding future risks.
Streamline the Process with Technology
Not surprisingly, we strongly advocate for the use of legal hold technology to save you time and headaches. Historically, legal holds were manual, making them time-consuming, tedious, and error-prone. Our own Legal Hold Pro, for example, offers the ability to automate those time-intensive tasks, reducing the time dedicated to hold management by 70 percent or more.
Look for tools that make it easy to send and acknowledge legal holds, create and store templates, send and escalate custodian reminders, and provide an audit trail describing every step that was taken in a matter – all of which help improve legal defensibility of your processes.
Best Practices for Defensible Legal Holds
Here are some actionable tactics you can implement to audit or improve your legal hold processes.
- Establish consistent and repeatable processes. Consistency and policy compliance are the cornerstones of defensible holds and defensible data deletion.
- Document everything. Document every decision and every communication with your custodians so that you don’t have to rely on memory.
- Ensure understanding. Verify that your hold notices are written clearly and functionally.
- Track your custodians. Employee roles — and the responsibility for associated ESI — often shift over time so keep track of these changes and reassign custodian responsibilities as needed.
- Bring IT on board. Coordinate with your IT team on how to manage ediscovery data within your larger information governance strategy before, during, and after a legal hold.
- Prepare for changes. Periodically issue custodian questionnaires outside of litigation to ask about new data sources your employees may be using and update your data maps.