Companies must ensure they are in total compliance with data preservation requirements—and with the growing amounts of ESI generated, it is increasingly common for litigation to require access to evidence stored digitally. So what can legal teams do to ensure that crucial data is placed on legal hold and not disposed of?
Being prepared and managing all the required steps can feel challenging, but it’s key to your success. Companies need a concise action plan for implementing legal holds—being prepared is key. This article provides practical steps to ensure your process ticks all the correct boxes, whilst helping you sidestep the most common pitfalls.
What Is a Legal Hold & Why Do You Need an Action Plan?
A legal hold, also known as a litigation hold, is a process that ensures the preservation of discoverable ESI and relevant information for potential litigation matters, investigations, or other legal disputes.
A legal hold is a notification sent from the legal department to instruct custodians and data stewards not to delete any ESI or archived documents that might be relevant to an imminent or new legal case. Legal holds certify that the data is secured and available as long as the hold is in place.
It might seem like a straightforward process in theory, but without a structured plan, things can quickly get complicated. In many cases, companies might find that they’re dealing with multiple legal holds simultaneously. Legal departments need to have clear processes—not only to demonstrate the commitment to go to all reasonable lengths to ensure data is retained, but also to manage concurrent litigation issues.
Here are the things you need to do.
1. Identify Your Recipients
First of all, you need to identify key custodians and any data stewards who might have access to data related to the anticipated litigation. Data stewards could include IT staff, division members, members of the legal department, department heads, personal assistants, and so on.
Firstly, define the people responsible for maintaining the records you’ll need to protect. This is the first step in ensuring all data is preserved. As the litigation process evolves, this list may need to be revised and updated.
Courts are typically quite understanding and appreciative of the issues involving anticipated litigation, and how it develops as the case progresses. Courts will expect to see a reasonable attempt to identify and protect all sources of data under the circumstances. As outlined in this Judicial Primer, non-compliance is judged on a sliding scale of severity, ranging from "negligence" and "gross negligence" to "willfulness in the spoliation context.”
2. Issue a Written Legal Hold Notice
Once you have your data custodians identified, you need to ensure that they are aware of the impending litigation and the need for an immediate hold to be placed on ESI. This notice will be different for different types of personnel. For example, individual custodians are in control of only their own data, such as emails, recordings, or documents, so a notification to request that they refrain from deleting their own data would suffice.
Team custodians, such as IT personnel, have access to a high volume of stored data so the notice might necessitate the suspension of any routine disposal or destruction policy that might impact the legal hold.
To ensure that you can demonstrate compliance, the legal hold notification must be delivered in a written format, either by email or hard copy. In some cases, courts have judged a party to have failed to comply with its duties because it did not issue a written legal hold notice – in fact, it can be considered gross negligence. When it comes to issue notice, no matter the size of your organization, verbal communication simply isn’t enough. You need to be able to prove your efforts to the court, if requested. And the safest course of action is to have your notices written and retained.
3. Ensure Your Written Notice Has All The Information You Need
There are no specific legal requirements when it comes to writing the legal hold notice. As you are writing it however, it will prove beneficial to keep the purpose of the document at the forefront of your mind. The hold must ensure that all hypothetically relevant and discoverable ESI is immediately ringfenced and protected from deletion or spoliation. Because of this, you need deliver a clear and straightforward message, highlighting all the duties and responsibilities.
With simple language and structure, a legal hold should identify:
- The subject matter of the information that the company must preserve
- The materials/sources that should be preserved
- The types of information that might be relevant
- The time frame to which the preservation duty applies
- How employees should handle any relevant information that they possess
- Who employees can contact in case they have any questions
- Key deadlines for acknowledging the legal hold and taking any further actions
Legal holds should also explain to the recipients:
- Their duty to preserve until further notice
- Their duty to preserve all relevant data in its original form, without modification
- The importance of preserving relevant data
- The potential consequences of noncompliance, both to the individual and the broader organization
4. Obtain Acknowledgement of the Hold Notice
When issuing your notice, be sure to request a clear acknowledgment of the hold from every recipient. Whilst it is not absolutely required, this step is highly recommended. Having acknowledgment receipts helps you to prove that each custodian was aware of their duties and that you’ve gone to reasonable lengths to ensure compliance with your hold notice. To the courts, it demonstrates you’ve acted in good faith and treated the issue seriously.
The written acknowledgment could even be included within the written legal hold notice. For example, if you’re sending your notice by email, you can automate your acknowledgment process by including a confirmation button at the end of the notice. If you’re sending a letter, you can include instructions on how to send your acknowledgment receipt.
Either way, make sure to follow up with any recipients who fail to acknowledge your notice and report to superiors, if needed.
5. Remind Recipients About the Hold
Issuing the notice is your first step, but legal holds require constant attention and careful maintenance. Litigation can take years to resolve, so changes are very likely to happen throughout the process, such as the installation of software, changes of personnel, change of retention schedules, etc.
For this reason, sending periodic reminders about the hold is an effective practice. Again, this is not a specific requirement, but it does show your commitment to ensuring you’ve put effort into a successful legal hold being not only established but also maintained. A few tips:
- Track the dates of the reminders and confirm the receipt with each recipient
- Document all revisions and modifications, if any
- Notify when lifting the legal hold
6. Document Your Process
A lot of information and a lot of people are often involved in a legal hold. Careful documentation of the process is advisable, so be sure to have a clear record of the steps and measures you took to show the courts, should this ever be required. Your documentation could cover the following:
- The date that the hold was initiated
- The triggering event
- By whom the hold was initiated
- The list of personnel involved and the responsibility for the hold
- Any changes made throughout the process, such as new custodians, new sources of data, relevant changes in the company
- Scope of all the information, custodians, sources, and systems involved
- The dates and a record of any notices or reminders sent
- Record of the acknowledgment of both notices and reminders sent
- Any relevant notes or additional sources of information
The list acts as a baseline, but the more information you record and include, the more watertight your case will be.
Legal Holds: Get Prepared
Applying a clear structure to the internal processes surrounding legal hold proceedings will facilitate your defence and help you comply with all the legal requirements.
Get ahead of the game by establishing clear internal policies with regard to the way that legal holds are dealt with within your organization. That way, even if multiple legal holds accumulate, you have a clear process to follow for each one, keeping things clear and controlled.
Ensure you’re ready to meet the requirements of a legal hold by taking control of your digital data. ESI is notoriously difficult to archive in a comprehensive and compliant manner. Working with a partner such as Pagefreezer can help you simplify data governance and initiate legal holds with the simple click of a button.
Would you be prepared for a legal hold encompassing your organization’s social channels? What if crucial comments have been deleted or posts have been edited? Discover the best way to place social media data on litigation hold and gain access to the original unedited content—click through to our next article.