A multi-part series on the fundamentals eDiscovery practitioners need to know about the identification and preservation of potentially-relevant ESI
In “In the Beginning,” we reviewed the importance of effective identification and preservation as well as the triggers for doing so. In “Legal and Technological Scope,” we reviewed the scope of what must be identified and preserved. In “Imagining the Possibilities,” we reviewed the first steps for identification. In “Investigating the Realities,” we reviewed the investigative aspects of identification. In this Part, we discuss the role of legal holds in preservation.
Once you’ve completed your imagination and investigation activities, once you have identified the potentially-relevant materials within your organization, you are ready to take steps to actually preserve those materials. The first and most important of those steps is the issuance of a legal hold instructing the custodians of potentially-relevant materials regarding the need to preserve them.
It’s true that “legal holds do not preserve data” themselves, but they are the critical first step in the preservation process, ensuring that materials survive in situ long enough for you and your team to go get them. You are literally saying to everyone – just as Sam & Dave sang in 1966: “Hold On, I’m Coming.”
Formal, written legal holds became the focus of much attention in eDiscovery after the Zubulake V ruling in 2004, in which a party was sanctioned for failing to issue a hold or take other necessary steps to ensure the preservation of relevant materials. In subsequent years, this decision was cited in numerous others, and written legal holds became central to an effective eDiscovery preservation process.
For a time, the failure to issue a written legal hold was treated as per se gross negligence. That absolute requirement for a hold in writing was softened by subsequent cases, however, which allowed for the possibility of circumstances in which oral holds or other approaches to preservation may be appropriate. See e.g. Chin v. Port Authority, Nos. 10-1904-cv(L), 10-2031-cv(XAP) (2d Cir. July 10, 2012).
When preparing a legal hold for issuance, there are five essential elements that should be included. An effective legal hold should include information regarding:
When drafting, it is important to remember that the hold must cover not only the devices and materials of individual custodians, but also relevant departmental and enterprise systems and any automated janitorial functions that may be running on them. Additionally, you may consider including: compliance confirmations to be returned; custodian surveys to aid in collection planning; or frequently asked questions to help recipients understand what’s required.
Once you’ve created your hold, you are ready to issue it to the lists of key players, important system managers, and other custodians that you identified during your brainstorming and investigation activities.
Beyond just issuing a legal hold, it is crucially important that you engage in some form(s) of ongoing compliance monitoring after hold issuance. As has been made clear in case after case, failure to check if individuals are actually complying, or to remind them as needed, can be just as consequential as failing to issue the hold in the first place. See e.g. Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, Case No. 05 Civ. 9016 (S.D.N.Y. Jan 15, 2010); Chin v. Port Authority, Nos. 10-1904-cv(L), 10-2031-cv(XAP) (2d Cir. July 10, 2012).
Common steps taken to ensure ongoing compliance with a legal hold include:
As we noted above, a legal hold is not itself preservation, and if it is not followed by steps to ensure actual preservation takes place – like ongoing compliance monitoring, then whether or not a hold was issued doesn’t really matter.
Upcoming in this Series
Next, in the final Part of this series, we will conclude our discussion of identification and preservation fundamentals with a look at some common pitfalls and key takeaways.