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 in litigation holds include diversifying sources and source types, evolving custodian behavior, and ever-increasing expectations. Read on to review how to meet those challenges and achieve effective, consistent, and well-documented legal holds for your organization.
In legal holds, the duty of preservation is a foundational concept in our legal system that grows out of the common law concept of spoliation. If courts exist to make determinations about disputed facts, and if the trier of fact must make determinations using the available evidence, then no litigant should be allowed to gain advantage in determinations by destroying relevant evidence before facts are considered. The scope of discovery for litigants and third parties needs to preserving. 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 that ensured the preservation of relevant materials. Despite the allowances for such circumstances, the issuance of a written legal hold is still considered best practice and the standard first step in any preservation process. At root, though, all written legal holds need to contain five essential elements. 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? 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 and it’s legal substance and questions? 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, a particular department, or 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. 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 and protected attorney work product. Practitioners must also remember that technology is constantly evolving. 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.