Legal Hold Questions
Properly managing the litigation hold process is a balancing act for lawyers who have the burden of ensuring that custodians maintain preservation while performing countless other tasks. Combined with the use of a reliable eDiscovery software solution, adherence to some proven best practices helps legal counsel manage disputes. Manual, traditional methods of managing the legal hold process may work for small organizations in the short term, but they simply won`t be enough for large organizations or businesses looking for continued growth. As your business grows, you may face ongoing litigation, which means you have to manage multiple legal retention periods at once. Managing and organizing the legal retention process is complex, tiring and prone to costly mistakes if you don`t have the right tools to support them. A litigation hold, sometimes called a legal suspension, is the process by which companies ask their employees to retain certain data for potential litigation. Neither an internal employee nor any other data subject (both called custodians) can delete or destroy data – whether stored electronically or on paper – without risk of legal consequences for the company. Therefore, it is absolutely essential for companies to implement a legal blocking process that is defensible, repeatable and effective. Give your managers concise and simple instructions on how to meet your retention needs. For example, you can include such language in your freeze notice: businesses and their legal departments can be effectively prepared for this growing need by conducting a program evaluation that helps them understand the current state, determine a desired future state, and identify and measure gaps. Identifying opportunities to improve the statutory withholding process is another important consideration.
A risk-based approach to remediation can produce positive results in a relatively short period of time. An organization`s legal team, whether internal or external, typically initiates process lock-in. When the team learns of a triggering event, it sends a legal suspension notification to appropriate custodians, data stewards, and other key stakeholders. A hold notification usually gives an overview of the situation, describes the recipient`s obligations, and determines what data should be retained. It may include more information, such as who to contact if the recipient has questions. It`s really not an option not to issue a legal ban at all, and no self-respecting court will appreciate your efforts (or lack thereof): if everyone in your organization works from a different tool or platform, things inevitably get complicated. But proper and reasonable data storage that stands up in court does not allow this mess. Organize your teams with a centralized platform that enables real-time updates, is easily accessible to stakeholders, and integrates with your other existing systems. This allows your team to track and manage all activities in one place, so nothing gets lost in the mix.
Your team`s legal retention process depends on whether the recipients actually receive notifications, which can be difficult if a recipient changes positions, goes on an extended vacation, or leaves the company. On the other hand, a new employee may need to be legally banned when starting in the company if the entire department or organization is involved. These mistakes may seem ridiculous and even fraudulent in hindsight, but often big mistakes happen simply because things aren`t communicated completely, to the right people, in the right way, or there was simply no quality control. These errors can be difficult to detect at this time, especially if the Commission is overstretched. Now that you`re in the mindset of sanctions, which are tragically inevitable if you fall into the fate of a bad legal detention center, ask yourself these questions now, questions that opposing lawyers will ask later when they get the discovery during the detection filing under FRCP 30(b)6 (you`ll find that some of the questions also dive into the slaughter and review stages): As eDiscovery 101 shows, IT is primarily consultative, as it is typically responsible for retention policies whose legal retention process is intended to exempt data. Therefore, if the legal suspension is reassessed or revoked, IT must ensure that custodians cease their data retention efforts and restore the data involved in the legal retention process to normal retention and destruction policies. In some cases, especially lengthy litigation, a significant amount of data retained during the legal retention period has exceeded the usual retention period and must be deleted in order to comply with these guidelines. For important cases involving sensitive information, legal teams should coordinate with IT to ensure that custodians know that this data is again subject to a retention policy and (if applicable) that it needs to be deleted from company systems.
