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. Today’s challenges include diversifying sources and source types (e.g., mobile devices, social media), evolving custodian behavior (e.g., personal cloud storage, messaging apps), and ever-increasing expectations (e.g., duties of competence extended to technology, new sources treated like old ones by judges). Read on to review how to meet those challenges and achieve effective, consistent, and well-documented legal holds for your organization.
The duty of preservation is a foundational concept in our legal system that grows out of the common law concept of spoliation, which is more than 200 years old: if courts exist to make determinations about disputed facts, and if the trier of fact must make those determinations using the available evidence, then no litigant should be allowed to gain advantage in those determinations by destroying relevant evidence before the trier of fact can consider it. Although this common law duty of preservation is not directly codified in the Federal Rules of Civil Procedure, it is dictated by implication in Rule 26, Rule 34, and Rule 45. Together, these three rules define the potential scope of discovery for litigants and third parties, and anything the rules may require you to produce is, inherently, something you need to preserve. So, what is the scope defined by those rules?
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. Despite the allowances for such circumstances, the issuance of a written legal hold (whether in paper or via email) is still considered best practice and the standard first step in any preservation process. Those legal holds can take a variety of forms and include a variety of optional content. At root, though, all written legal holds need to contain five essential elements.
In addition to the essential elements, there are a variety of optional elements you can include to accomplish more with the distribution of your legal hold. Read specific explanations of each of the elements here and learn about the three most commonly included additions.
We have already discussed the potential range of triggering events for the duty to preserve, but what happens when one occurs? How does word filter to the appropriate individual? Who is the individual responsible for taking action? What actions do they take to initiate the process? Are the initial steps internal, or executed with outside counsel? On what timeline do they act? The next activity that can benefit greatly from a standardized process and a documented policy is the drafting of the hold to be issued. Once the responsible individual has identified a triggering event and started down the road to hold issuance, who will actually be responsible for drafting? Who will contribute to the legal substance? Who will address technical questions about subject source types or affected enterprise systems? Who will address any cross-border concerns? Read here to learn how to approach and answer these hold initiation and hold drafting questions.
Another activity for which a repeatable process is essential is the identification of the appropriate hold recipients. Even a timely and well-written hold will not be effective if it does not reach everyone it needs to reach. So, who does it need to reach? Does it need to go to the entire company? To a particular department? To specific individuals? What about executive management? Who is responsible for relevant enterprise information systems? Are there outside, third-party recipients that need to be added too? Read on to learn how to approach and answer these questions.
In this segment we discuss the tools you can use for legal hold activities. The first and simplest tool available for legal holds is, of course, paper. For medium or large organizations, it is now common to create and use electronic forms rather than just paper or emails. Today, there are also a variety of purpose-built tools specifically for creating, distributing, and managing legal holds. There are more than a dozen offerings of this type in the marketplace, and more are sure to appear as the industry continues to grow. Read here to learn how and when to use each most efficiently, as well as descriptions of five leading solutions to orient you to the range of options available.
In most situations, legal hold notices are communications from an in-house counsel or an outside counsel to employees of an organization, which brief them on a legal situation and the need to hold materials for it. As such, legal hold notices are typically considered both privileged attorney-client communications (because they are the communication of legal guidance) and protected attorney work product (because they reveal the attorney’s thinking about the matter). In addition to remembering to think about newer sources like mobile devices and social media and about the deliberately-expansive definition of “documents” used by the rules, you must remember that technology is constantly evolving. Until recently, auto-deleting messaging apps did not exist, and now, they are used by 56% of smartphone owners ages 18-29. Technology will continue to leap forward, and legal expectations will follow slowly behind. You won’t be expected to consider a newer source, until one day you are.