Recap: Retention and Holds, Preservation and Collection

There was a lot of very interesting dialogue at Counsel On Call’s Discovery Symposium, and one (overarching) topic clearly on the front burner was retention, holds and the collection/preservation of documents -- and the internal processes and logistical challenges surrounding these often laborious tasks.

This will be one of our longer summaries from DS1.0’s four main sessions; more will be posted Wednesday.

Good Policies for Retention and Holds; Standards of Care in Preservation and Collection
Panelists: Senior attorneys from Equifax, FedEx Express, Hilton Hotels
Moderator: Anne Whitaker (Vice President, Counsel On Call)

Summary of Dialogue
A properly developed retention program can be a useful tool for reducing the cost associated with document review and other discovery-related matters. The preservation of appropriate data is one of the most pressing issues facing litigation managers today.

Panelists discussed eight basic steps to developing a program that is reasonable, defensible, and practical:

1. Identify when the preservation obligation begins.

Every company has different needs that must be addressed.  One panelist said a preservation obligation may begin with, for instance, an internal employment investigation. It does not begin when a claim is filed for lost goods. Another company begins the process if there is intent to initiate litigation. The in-house attorney asks, “Is this meaningful? Credible?” It’s a judgment call.

2. Determine what ESI (electronically stored information) must be preserved. 

The main question to ask is, “What do we need in order to win or defend this case?” A map of the IT landscape is needed; therefore, a close relationship must be developed between legal and IT and a common language between the two established. It is also important to define “necessary business records” and in some companies’ legal holds, this term is defined and a list of triggers provided (such as an EEOC charge or knowledge of a complaint filing). Another panelist mentioned that custodians must be identified prior to determining what ESI must be preserved and posed the question of whether companies ask custodians to “give him what they’ve got” or if it is sometimes better to retrieve materials.

In terms of what goes into a hold, one panelist said that two pages is too long for a litigation hold, and to be concise (but possibly attach the subpoena to the hold just to be sure to cover all bases). Several panelists suggested including "warnings" in the holds, such as "do not share any information in this hold or you will be in violation of company policy" or something to scare custodians into compliance. Another attendee suggested web-based training for custodians prior to being subject to their first litigation hold.

3. Who is in charge with respect to technology?

Staff from IT, security, and legal are involved, but most agreed that someone from IT manages the effort. All processes and procedures are in writing in order to keep communication consistent. Important to be consistent.

4. Identify and notify. Get hold notices out in a timely manner.

Custodians as well as the repositories need to be identified. One panelist said that a brief but clear e-mail regarding the hold is sent and the company’s “auto destroy” or “auto cleanse” programs are suspended.

5. Once the hold is in place, continually monitor/police compliance with it.

Several companies verify that each custodian has received the hold notice; an acknowledgement is required from each of the identified custodians. Additionally, IT tracks activity at each repository where data is stored.

A number of people in the audience discussed this issue, including one who explained that employees receive an e-mail every day (after the first week) until they acknowledge that they have read and understand the hold. After seven days, reminder e-mails are sent to the employees' respective supervisors so that the supervisors understand that the employees are not complying with the hold (and can take appropriate action).

6. Document compliance with the retention and holds policies.

One panelist said to leave a paper trail showing the date the legal hold was issued, the scope of what is being preserved, the master list of custodians and the systems involved, and regular and complete compliance records.

7. Should the hold notice be re-issued? If so, what issues go into that?

Since the complexion of a suit changes over time, the hold should evolve with the case and, therefore, should be re-issued when necessary.

8. Halt. Release the hold once the matter is over.

E-mail custodians stating the hold is released and inform them that they should resume following regular policies.

One question that was raised is how does a company make sure that a hold is not disrupted (or lost) when a custodian leaves the company's employ? Two of the large companies in attendance said an IT person is responsible for overseeing litigation holds and managing the companies' e-discovery protocols. An attendee recommended that an e-discovery coordinator (typically not one of the in-house attorneys) show up at Fed. R. 16 discovery conferences.