Everything you wanted to know about eDiscovery, but were afraid to ask
Legal holds or litigation holds are a key part of eDiscovery as they involve the entire organization and happen far more frequently than other steps of the eDiscovery process, like data collection or review. Therefore, legal professionals need to have a good understanding of the technological and legal requirements that must be navigated to meet their preservation obligations.
A legal hold, also known as a litigation hold, is the process by which organizations preserve potentially relevant information when litigation is pending or reasonably anticipated. By issuing a legal hold, organizations notify custodians about their duty not to delete ESI or physical documents relevant to a case.
Since under FRCP Rule 37(e) (the section that governs the spoliation of electronic evidence) organizations have a duty to "undertake reasonable actions" to preserve information that is relevant to the case when they anticipate litigation or another type of formal dispute, they need to be able to prove that they have taken "reasonable and good-faith efforts" to ensure that data is not deleted after the triggering event occurs. A triggering event is the event or occurrence that precipitates the party to begin preserving information (for example, when expecting another organization or an employee to initiate litigation.)
Therefore, having a legal hold process in place and using a legal hold-specific tool is crucial to show defensible and good faith efforts to preserve evidence.
Although it's common to think about legal holds as the notification that is sent to custodians in order to preserve information, the legal hold process actually consists of multiple steps:
This is usually the first step in creating a legal hold. The legal team must determine which information could be potentially relevant to a matter. Nowadays, it’s common for this data to be electronically stored information (or “ESI”), but it might also include physical documents, like logbooks and paper files.
A custodian is the person who personally possesses and is in charge of the information that needs to be preserved. Before issuing the hold, legal teams usually work with the IT department to identify all custodians relevant to the case. Custodians can also be “silent custodians”, that is, people in the organization whose data is preserved without getting a notification about it. This type of custodians is frequent in internal investigations, for example.
The legal hold notice is the communication sent to all custodians letting them know that they’re on hold and specifying which information needs to be preserved. This is a key part of the legal hold process that we’ll cover in more detail later.
Reminders should be sent to ensure custodians remember they’re still under a legal hold. Oftentimes, reminders are also needed to make sure custodians acknowledge their legal hold obligations.
Once the legal matter ends, you need to let custodians know that their duty to preserve has ended. Having a sound release process is important so that no custodians are released from their obligations when they shouldn’t, and no custodians stay on hold forever.
Below, we will dive more deeply into all the important aspects about legal holds and best practices in managing them.