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No matter where your team is at with their legal process, there are always opportunities to improve upon your processes. While it can sound daunting, taking the time to take stock of what’s working, what needs improvement, and what needs a full HGTV-style renovation are critical steps to staying on top of any legal matters your company might be facing. With that in mind, we’ve put together a step-by-step guide for maintaining a defensible litigation hold process.
What is a Litigation Hold?
A litigation hold, also known as a legal hold, is a routine-yet-critical function of any corporate legal team. 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 legal hold process and systems from time to time to ensure that everything is as streamlined as possible, and, of course, completely defensible.
Too often, legal teams use spreadsheets, email read receipts, or outdated systems to track legal hold notices and compliance.
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A litigation hold is the process by which an organization advises personnel when information must be preserved for potential litigation matters or investigations. The legal hold process ensures that information that could be relevant to a dispute is protected until it can be collected for review or until the matter is resolved.
When Do You Send a Litigation Hold?
A legal hold is initiated typically by a written notification sent from the legal department to custodians and data stewards who might have relevant information about the dispute. The notice instructs those custodians to preserve — not destroy or modify — any information that might be needed for discovery, which may include electronically stored information (ESI), such as emails and spreadsheets, as well as paper files, notes, log books, and other tangible objects. Preservation also requires that custodians suspend routine record-destruction practices, such as automatic email deletion or records management purge schedules.
Who Releases and Sends the Litigation Hold?
The duty to preserve begins when litigation is “reasonably anticipated,” which may occur well before a complaint is ever filed. Study the Federal Rules of Civil Procedure, particularly Rule 26 governing discovery and Rule 37 regarding spoliation. Think about how you are required to respond to the threat of litigation. Can you demonstrate that you reasonably complied with your preservation obligations at each of those steps?
Proving your process means having standard written procedures for issuing legal holds, releasing holds, and destroying outdated information. You must also document the actions you took in each particular case. Written procedures and auditable responses can help you instill a culture of compliance among employees.
Where Does the Litigation Hold Go Once Released?
Once you understand the rules as they might apply to the types of litigation you encounter, you can outline your process for preserving data. Consider the standard information policies you have in place, and determine any gaps in coverage.
Next, look at how you currently manage legal hold notices. Do you use emails and spreadsheets to send notices and track compliance? Compare current practices to your ideal process and focus on improving the defensibility of your methods.
Know When and How to Initiate a Legal Hold
Once a trigger event has occurred, 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. However, since most employees aren’t legal experts, notices must be clear, understandable, and easy to act on. They should also require your custodians to acknowledge their compliance with the hold.
Benefits of Using Litigation Hold Software
Too often, legal teams use spreadsheets, email read receipts, or outdated systems to track legal hold notices and compliance. Legacy systems or processes can waste considerable employee time to create and maintain. They are also unwieldy and susceptible to human error, exposing your organization to potential risk.
Modern software tools are simply more efficient and effective than manual processes, empowering users to issue legal holds with multiple custodians with pre-approved language in seconds, rather than hours or days. These advanced software systems can ask custodians to affirmatively acknowledge their obligations under the hold. They can also report on compliance rates and trigger follow-up notices to custodians as needed.
Automated litigation hold software also provides a defensible “audit” view that documents when each custodian was added to or released from a hold, when each custodian was interviewed, and when files were collected. Detailed hold histories will display all revisions of a hold and confirm when custodians received them. Comprehensive reports regarding legal matters within the organization can provide information about every active hold and custodian at a single glance. This level of proof enhances the defensibility of your legal hold process while saving time, improving employee productivity, and mitigating the risk of spoliation.
Move to the Cloud
When looking to update your legal hold process, consider cloud-based software. Cloud software eliminates the burden of required storage space, hardware implementation, and ongoing maintenance. In addition, cloud-based systems generally have stronger security measures in place and can be accessed from offsite locations if needed.
7 Steps to a Defensible Litigation Hold Process
Regardless of where you’re at in the process, there is always room for improvement. Even small adjustments to your process can make a big difference. Here are some actionable tactics you can implement to improve your litigation hold process:
1. Streamline Where You Can
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.
2. 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.
3. Lean into the Process with Technology
Historically, legal holds were manual, making them time-consuming, tedious, and error-prone.
4. Establish Consistent and Repeatable Processes
Consistency and policy compliance are the cornerstones of defensible holds and defensible data deletion.
5. Document Everything
Document every decision and every communication with your custodians so that you don’t have to rely on memory. Even better, choose legal hold software with an audit trail built in.
6. 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.
7. Get IT Involved Early
Coordinate with your IT team on how to manage ediscovery data within your larger information governance strategy before, during, and after a legal hold.
Make Sure Everyone is On Board with Your Legal Hold Process
Last but certainly not least, you need to drive company-wide adoption. In the end, your legal hold process is only as strong as the people supporting it. Make sure that everyone in your organization understands both their obligations to preserve evidence and the methods you are using to track and prove your organization’s compliance. Offer training sessions and conduct routine audits to test how well your system is working. If you do incorporate new software, be sure to emphasize the time and money your employees will save, as well as the peace of mind that comes from having confidence in your legal hold system.
