Simplifying the Legal Holds Process for Faster Digestion: Part 2

Last week, Counsel On Call attorney Tiffany Fox posted the first blog in her series on legal holds. She discussed the first stage of a legal hold, which is preparation. Tiffany elaborated on the importance of understanding when a legal hold requirement is triggered, and the need for having “triage capabilities” in place in order to determine what immediate next steps should be. You can read her first post here. Continuing with this series, this post discusses the second stage, which is identifying the scope of the hold.

  1. Preparation
  2. Identifying the scope of the hold: This includes the person or people who need to receive  the hold and what information needs to be preserved. Generally you will want to notify persons who have substantive knowledge of the facts of the case, and IT or HR personnel who can help you protect and preserve data.
    • Remember that a custodian of data is not necessarily going to be a witness at trial. You may obtain information from someone who never gets deposed, and you will certainly have custodians preserving information that is never used by either party. In smaller cases with smaller clients, the custodian and counsel together can cull through and identify the documents that need to be held, but in larger cases the safer and less expensive move is to archive email accounts and backup systems containing known relevant information. The balance of the cost of storage versus the man-hours needed to cull through the data needs to be evaluated by counsel and the client to produce the best solution for each situation.
    • Every decision you make about a legal hold, including legal holds you don’t issue, should be documented in writing in a consistent manner and location. Document the why, who, when and what of the hold. The reason for this is actually a helpful presumption for your client: The courts do not expect perfection. They know that in any situation, some information will likely be lost. A party claiming spoliation has the burden of proof, but a paper trail is the best defense. Again, because these decisions are so fact-specific, being able to show contemporaneous evidence of why something was decided a certain way will tend to show good faith.

Next week, I will be covering the third stage, which is “issuing a hold notice.” I will discuss the importance of documenting your steps in an auditable form as well as the best way to send holds.


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