Simplifying the Legal Holds Process for Faster Digestion: Part 3

Continuing her series on simplifying the legal holds process, Counsel On Call Nashville attorney Tiffany Fox identifies the third step, which is issuing a hold notice. After you've preserved the information that may lead to discoverable data and identified the scope of the hold, you must issue a hold notice.

Simplifying the Legal Holds Process for Faster Digestion (continuing the series): 

  1. Preparation: The first step in a defensible legal hold is preparation.
  2. Identifying the Scope of the Hold: The second step is identifying the people who need to receive the hold and what information needs to be preserved.
  1. Issue a hold notice: Only after you have spent at least some time identifying custodians should you take the third step of issuing a hold notice. Note that a written hold isn’t always required as long as you and your client have taken reasonable steps in good faith to preserve the information. In a small case, picking up the phone and having a discussion with a custodian may yield better results than a written notice. This is obviously prohibitive in cases with many custodians. The strongly preferred method, and the most easily defended, is a written hold sent via email. The timing is important as well – the longer you wait after determining a hold is necessary, the stronger the claim of spoliation becomes. The decision about how and when to issue is another fact-based analysis that needs to be done separately for each client or matter.
    1. Whatever method you choose for issuing a legal hold notification, it is crucial to document the steps you take in an auditable form. For example, notes typed into your Outlook calendar immediately after the example phone call are much stronger evidence of reasonableness and good faith than testimony from a deponent who is trying to recreate the process solely from memory. For larger clients and corporations, investing in software that will automate documentation and tracking is a must.
    2. In general, legal holds are considered covered by the attorney-client privilege, though this is stronger protection in some jurisdictions than others. It is best to send holds directly from counsel (internal or external) to custodians of data to preserve the confidentiality. For this reason, you will want to solicit feedback from your custodians about who else may have information about the matter, rather than having them send it to other relevant parties. In addition, direct issuance gives you more control over the process and makes follow-up much easier.

For Tiffany's final post, she will give the final step to ensure that custodians preserve data in a legal hold. She will elaborate on how courts decide to sanction a party who ignores what a custodian does or doesn't preserve, regardless of how "innocent" counsel was in making the decision. She also will discuss the recent changes to Rule 26(b). Do not be that person! You will not want to miss the end of this series.


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.