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3 Essentials of a Defensible Legal Hold Process

Created on April 5, 2019


E-Discovery Market Analyst at Exterro

The preservation process may just be the most important stage of the e-discovery process, as it is the foundation of everything that follows. There can be no collection, review, or production of relevant information if your organization failed to preserve it in the first place. 

Case law outlines the broad strokes of what is required in a legal hold practice. That's why we've pulled together six recent case law rulings in the Exterro white paper The Essentials of a Defensible Legal Hold Process that can tell you what steps you need to take to ensure that your legal hold process is defensible, as well as some missteps to avoid.

Here are three of the baseline requirements of a defensible legal hold process:

  1. Be timely. Unlike the other stages of e-discovery, there isn’t a clearly indicated starting point—just an obligation to preserve once there is “a reasonable anticipation of litigation.” But what does that mean? If you're a plaintiff, you have a pretty good idea of when you intend to file a suit, which means you have an obligation to preserve all communications and data related to the matter. As a potential defendant, you have to rely more on common sense. Things like employment disputes, product recalls, and intellectual property claims (e.g., a "cease and desist" letter) are all red flags that indicate you should start preservation. Jose Franklin v. Howard Brown Health Center demonstrates the risk of failing to initiate a legal hold once a triggering event happens.
  2. Be specific. Make sure your custodians understand what their obligation to preserve means, in practical terms. Your legal holds should require acknowledgments from the custodians affected, and you should have a process for reminding custodians of their obligations on an ongoing basis. In EPAC Technologies, Inc. v.  HarperCollins Christian Publishinga boilerplate legal hold with no guidance or follow-up instructions set the defendant down a path toward e-discovery sanctions.
  3. You don't need to preserve everything. With the 2015 amendments to the Federal Rules of Civil Procedure's emphasis on proportionality, it's clear that the courts are embracing reasonable processes. If an error happens, and there's no evidence of an "intent to deprive" relevant data to the opposing party, the courts are not likely to issue penalties. Despite qualms about the defendant's preservation process, the plaintiff's motion for spoliation sanctions in New Mexico Oncology and Hematology Consultants, Ltd. v. Presbyterian Healthcare Services was rejected because the court did not find evidence to prove prejudice or bad faith.

For deeper insight into these cases (and three others), download Exterro's white paper The Essentials of a Defensible Legal Hold Process today!