When litigation is imminent, evidence must be preserved for the case, and this usually means drafting and sending legal holds to ensure neither party is destroying or altering potentially relevant data.
Sending out a legal hold doesn’t require extensive legal knowledge or practice, but it does involve several steps, and a clear, defensible process—and issuing a legal hold isn’t necessarily a one-size-fits-all endeavor, either. If you have questions regarding when exactly you should issue a legal hold and who you should issue it to, or you simply want to improve your own legal hold process, the strategies below will surely be of use to you.
If there’s one thing you don’t want to fumble when it comes to a legal hold, it is the timing. Issue your hold even one day too late, and you risk giving the intended recipient time to spoliate potentially relevant evidence. So, how do you determine when to issue a legal hold?
While it might seem obvious that a legal hold should be sent out immediately once litigation commences, in some instances, they can be sent even earlier. A legal hold can and should be sent as soon as litigation can be reasonably anticipated.
“Issue your hold even one day too late, and you risk giving the intended recipient time to spoliate potentially relevant evidence.”
The meaning of “reasonably anticipated” is intentionally ambiguous and can vary from case to case, but it includes any situation in which there is a credible probability that an organization will become engaged in litigation. Such instances may include cases of product defect, a volatile employee dismissal, receipt of a formal complaint or demands letter, a records subpoena, or even a credible media report of intended legal action.
Some companies develop their own process for identifying events that may trigger preservation, and use this process to determine when to issue legal holds. Others just deal with potential triggers as they come. In either case, issuing the hold as soon as possible is of the utmost importance.
Timing is one aspect, but you must also be able to properly identify all individuals who have encountered relevant documents and electronically stored information (ESI). These individuals, called custodians, will be sent holds requiring them to preserve such data.
Don’t forget “non-custodian” holds to the organization’s IT and HR departments, as they will have access to specific machines, devices, and backend systems that may contain relevant ESI in need of preservation.
Organizations may also have a specific schedule for retaining and destroying information, which may need to be modified in order to comply with the preservation obligation outlined in the legal hold.
"Don’t forget ‘non-custodian’ holds to the organization’s IT and HR departments, as they will have access to systems which may contain relevant ESI."
Properly identifying who to send a legal hold to requires you to be somewhat specific. Distributing a hold to an overly-broad group of people increases non-compliance and misunderstandings, since employees tend to pay less attention to mass notices. That being said, custodians may be added or released from the hold as the legal process continues and more facts are discovered, and this is entirely normal.
An effective notice of a legal hold will clearly and concisely convey to your intended custodian(s) the specific ESI or paper documents that need preservation. You should be specific and detailed enough that your custodian can easily understand what is being asked of them, but avoid narrowing your scope so far as to overburden or confuse them.
Take time to carefully consider the relevant issues of the case and what may serve as a potential source of evidence. It can be useful to use ESI questionnaires and custodian interviews to help you fully know what to ask for in your legal hold.
The notice should explicitly state the legal compulsion of the recipient to comply with the hold and include an easy means of communication for the custodian to contact the legal team should they have any questions.
Once you have sent notice of your legal hold, you must now ensure that all your intended custodians actually receive notice of the hold. To do this, you must state within your hold that its recipients are compelled to acknowledge its receipt by sending a confirmation to the hold’s author.
Acknowledgments can come in the form of a written email or even physical letter—or, ideally, a simple click of a button. The easier you make your process, the higher your acknowledgment rate will be.
Whichever you choose, make sure to specify this within the hold. Ensuring all acknowledgments come in the same form makes it easier to confirm which custodians have or haven’t sent acknowledgment.
“The easier you make your process, the higher your acknowledgment rate will be.”
If an intended custodian completely ignores your notices altogether, you may want to contact them directly through another channel, such as in-person or via phone, or issue an escalation notice.
An escalation notice is a much more powerful tool for garnering response, as it is sent to the unresponsive custodian’s direct supervisor. It alerts them of the custodian’s inaction in relation to your legal hold and the subsequent risk this poses for the company, and requests an intervention. Generally, a custodian will begin to comply when they are prompted by their supervisor to do so.
Gathering all these acknowledgments might seem like a pain, but it is an important part of the process. By compelling your intended custodians to send acknowledgment of their receipt and understanding of the hold, you are demonstrating that the hold did indeed reach the relevant custodian and the instructions within were understood.
Why send reminders? The people you’re sending a legal hold to are most likely just as busy as you, and some might not be too eager to comply with your request, so it is important to send out reminders of your hold on a regular basis. It is usually best practice to set a schedule for sending reminders, sending them frequently enough to keep custodians informed but not so frequently that they will become an annoyance—or, worse, simply be ignored.
Using a template for your reminders is highly recommended. Templates keep your notices simple and consistent, which improves custodian compliance rates as they become comfortable receiving and navigating your notices.
“Send reminders frequently enough to keep custodians informed but not so frequently that they will become an annoyance—or, worse, simply be ignored.”
As your case develops, you may have to update the information provided in your legal hold, and these updates will also go out as reminders.
Deciding when to release a legal hold can be tricky. It is not unusual for an organization to have several litigation matters happening at any given time, and each of these cases will have their own relevant holds. Therefore, some of your custodians may also be subject to other active legal holds that concern overlapping ESI. Your legal team must ensure that only the relevant holds are released.
Obviously, keeping track of this can get messy. Some organizations keep spreadsheets or other manual methods of tracking active holds. However, automated legal hold systems are becoming more and more popular, as they can not only track automated holds but also have built-in settings that can allow you to release individual custodians from a hold swiftly and easily. When you have the all-clear to release a hold, you can do so with just a few clicks of the mouse when using automated software.
It is critical that your legal hold process is well-documented. You need to keep a running log of all steps taken and all communication made and received during the legal hold process. Not only does this help the process run smoothly and effectively, it serves as proof that a proper and adequate process was in place and that any lost or damaged files were not intentionally spoliated.
"Automated hold software lets you see every action taken during the hold process, without the burden of manual documentation."
Traditionally, keeping a report of your legal hold process is done manually, through such tools and means as spreadsheets, ledgers, word documents, and email inbox folders. Alternatively, automated legal hold software can be used, and indeed is seeing a rise in popularity.
Such software is particularly useful when it comes to keeping a detailed and accurate record of your process, not only because it is designed to do so, but because it does so automatically and all in one location. Every action taken during your legal hold process is automatically logged by the software. You can look back on exactly what tasks you have completed and when, who has sent acknowledgments, and which holds are live or closed. Some software even allows you to create plans and templates for your legal hold process, so you know exactly how to proceed each time.
The legal hold process can be ambiguous at times, but having a solid process or using automated legal hold software can help it run smoothly and effectively every time. That’s why leading legal organizations trust Logikcull Hold to help them create and manage defensible legal holds with ease.