Below, we`ll delve deeper into all the important aspects of legal holds and management best practices. To ensure that you can demonstrate compliance, the notice of legal detention must be given in writing, either by email or in paper form. In some cases, courts have condemned a party for failing to comply with its obligations, for failing to issue a written notice of legal retention – in fact, this can be considered gross negligence. When it comes to notification, no matter the size of your business, verbal communication simply isn`t enough. You must be able to prove your efforts in court if asked. And the safest course of action is to write and keep your messages. Any reminder to recipients that the lock and its instructions are still in place and that potentially relevant information should not be changed should also be tracked. Lift your handles easily and easily when data no longer needs to be retained. When releasing a statutory retention obligation, it is important to check whether the disclosed information or custodians are not subject to different retention obligations due to another legal retention obligation.
A robust and centralized tracking system for all legal retention periods is essential in this regard. 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. Manage the entire legal retention process on a single platform. From custom templates to tracking logs, our legal retention technology helps you optimize the retention and collection of your data well before litigation begins. Effective monitoring of the status and progress of conservation and collection efforts. Generate reports that include the information needed to successfully manage legal holds. For this reason, sending regular reminders about the lock is an effective practice.
Again, this is not a specific requirement, but it shows your commitment to ensuring that you have made an effort to maintain successful legal retention that is not only established, but maintained. A few tips: A custodian is the person who personally owns and is responsible for the information that needs to be retained. Before the lock is issued, legal teams typically work with the IT department to identify all custodians relevant to the case. Custodians can also be “silent gatekeepers,” that is, individuals within the organization whose data is retained without notice. This type of guard is common, for example, in internal investigations. When exactly should you issue a legal retention period? Who should lead them to improve your own legal retention process? Learn 7 easy-to-use strategies for a defensible maintenance process. Unresponsive guards are frequent and a plan must be put in place in advance to deal with them as effectively as possible. Often, custodians simply have other priorities, which explicitly include not keeping a close eye on the company`s legal affairs.
Methods for obtaining (and withholding) custodians during the legal hold process are explained in more detail in the Best Practices section below. Managing legal holds using spreadsheets is neither efficient nor secure. More and more legal teams are relying on existing technology to streamline their legal obligations and are ensuring that most of the steps covered in this guide are automatically done for them. When ESI is involved (i.e. 99% of the time these days), your IT or legal departments are great allies when it comes to finding information sources and custodians. A robust information governance program is also essential to easily identify where potentially relevant ISIs are located and who is responsible for maintaining them. In overviews of legal holds, recipients of legal hold orders are glossed over or hidden behind the phrase “anyone who may have relevant data.” As part of the eDiscovery process, the legal team responsible for the eDiscovery investigation creates a list or summary of possible data sources (custodians). They often work with IT to find out who these sources are and where exactly their data resides. This is an ongoing process and, as the process progresses, other custodians may be discovered, which should then receive a notification of legal suspension.
For a more detailed overview of the entire eDiscovery process, see eDiscovery 101, which discusses the legal retention process in detail. Issuing the notice is your first step, but legal retention periods require constant attention and careful maintenance. Dispute resolution can take years, so changes throughout the process are very likely, such as software installation, personnel changes, changes to retention schedules, etc. Monitor the progress of legal retention and generate status reports. As you may recall, Zabulake`s decisions were very influential. They were not always as clear as we would all like. More importantly, the standard used to determine when you should start sending legal holds is “reasonable anticipation of litigation” – what does that mean? In practice, organizations tend to send notices of legal suspension to custodians as soon as they have a delivery. Ideally, a legal team has a series of procedures in place that allow it to trigger the start of the legal block in advance.