Best practices for enforcing legal hold

A legal hold is a step in the e-discovery process that is concerned with the good faith efforts of preserving evidence. It is the mechanism used by opposing parties to preserve potentially relevant information that could be critical to the settlement of a dispute. The parties must communicate the importance of preservation to the custodians of the requisite information and ensure compliance until there is no need for that information.

The document that outlines the scope of the preservation requirement is referred to as the legal hold notification or notice.

Importance of legal holds

The legal hold is the best way to inform all parties

  • that litigation is imminent or anticipated
  • of the need to preserve potentially relevant information
  • that paper documents and electronically stored information (ESI) must not be altered or deleted.

To prepare such a notice, the legal department must identify all potential sources of information, custodians of the information, scope of data preservation needs and any practical/technical challenges that may be encountered during the coming dispute. Ensuring the latter part of the legal hold process is challenging because opposing parties and custodians of potentially relevant information (inadvertently or knowingly) continue with the routine destruction and spoliation of data.

If requesting parties fail to provide custodians with a prompt, detailed and comprehensible litigation hold notice, they may not receive the information needed to successfully litigate a case. Conversely, if the notice recipient fails to comply with the stipulation of the legal hold notice, they could suffer adverse inferences, sanctions and grave penalties. To prevent such an occurrence, let’s take a look at best practices for enforcing legal holds.

  1. After issuing the initial notice, legal departments should regularly send reminders to custodians of potentially relevant information. This can be automated through the use of robust enterprise legal management software (ELM).
  2. Request that custodians seek additional information if they are unsure of how far to extend data preservation efforts.
  3. Recipients of legal hold notifications should identify information systems that alter or remove content and configure them accordingly. This includes changing auto-delete settings that routinely expunge archived and outdated files. Automatic functions that alter real-time or stored data should also be identified and managed as part of the process.
  4. Check the impact of hardware-related actions on legal hold notices. Such actions include destroying obsolete equipment, removing or overwriting backup drives and allowing cloud subscriptions to expire without backing up data to external drives.
  5. Preserve all non-work related emails, call records, online accounts and profiles that may contain business correspondence.
  6. Establish secure repositories for ESI to prevent alteration or destruction.

Conclusion

The implementation of legal holds is critical to avoiding sanctions and preserving relevant information. Attorneys must determine the scope of preservation of relevant evidence (according to the needs of each case), communicate this obligation to custodians and monitor their compliance. Not doing so could lead to claims of legal malpractice and sanctions. Modern software, particularly when related to other ELM features (such as matter management), enable your legal department to initiate, track, document and follow up on every stage of the process.

To learn more about enforcing legal holds, please contact Acuity ELM.

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