By Donna Stubbs
If you’re new to e-discovery, it’s easy to think that data preservation and legal holds are, for all intents and purposes, the same thing. Although legal hold notifications (and systems to ensure that custodians comply with them) are critical to data preservation, they’re not one and the same. However, if you can’t wait to find out more about legal holds, check out our new Beginner’s Guide to Legal Holds.
Since we’ll be focusing on legal holds in a later blog post, this article will lay out some additional considerations and elements of the data preservation process beyond legal holds. Let’s walk through the process of preserving data for a potential legal matter now. We’ll include the step of issuing a legal hold, but you should realize that legal holds can be complicated matters in their own right, and this quick list doesn’t do them all justice.
Step One: Start with What You Know
While some (maybe even most, if you work at a large enterprise) matters will involve a long list of custodians and large volumes of data, it's useful to start small. Undoubtedly, there will be key players and highly relevant electronically stored information (ESI) that you can identify at the outset of the matter. Focus your initial efforts on these individuals and data sources. If you start preserving too broadly early on, you will risk over-preserving data, running up costs later in the e-discovery process and potentially losing sight of what matters most.
Step Two: Promptly Issue a Legal Hold
While it's helpful to start small, you shouldn't waste any time before issuing a legal hold. A legal hold notification helps ensure that custodians who may have relevant ESI preserve it. As custodians and data sources point to other individuals and data sources that may be relevant to the matter, add them to the hold promptly. Ideally, your legal hold process should be streamlined so that holds can be distributed quickly and with minimal effort. Technology can make a huge difference here, as dedicated legal hold systems provide you with means to add custodians, verify compliance, and send reminders as a matter proceeds through its lifecycle.
Step Three: Follow a Custodian Interview Process
You should treat custodian interviews systematically. Have an interview template that includes basic questions that are applicable across matters (e.g., Where do you store your data? Do you know of any co-workers involved in the issues underlying the matter?) ready to go at all times. Fortunately, technology can help you administer, collect, and aggregate custodian interview responses so you can take steps to preserve relevant ESI quickly. If you need a place to start, check out Exterro’s E-Discovery Custodian Interview Template.
Step Four: Create “Preservation Tiers”
Just as not all custodians and data are equally relevant to a case, not all types of ESI warrant the same preservation strategy. There are different methods for preserving data, some more costly and resource-intensive than others. Reserve the “collect-to-preserve” approach for your most relevant data, especially if it has a high risk of being deleted. Create guidelines for how you’ll use in-place preservation. With technology like Office 365, you might be tempted to preserve everything, but you could end up increasing data collection and review costs if you over-preserve. Place your lowest tier (e.g., least likely to be relevant) custodians on a legal hold, but don’t collect until you understand the relevance of their data.
Step Five: Track Employee Status Changes
Your custodian list will never be static. Dealing with custodian departures or movements within the organization reactively will inevitably lead to oversights. It's better to develop a proactive strategy that gives the legal department, specifically legal hold administrators, employee status change information right away. Relying on HR to deliver this information can be problematic, but integrating HR systems with your legal hold software can give legal immediate access to this information.
Step Six: Maintain a Master Custodian List
When a matter is resolved, it's not as simple as just releasing all the custodians from the legal hold and ceasing preservation activities. A custodian in one matter could very easily be involved in another. In fact, it's not uncommon for some custodians, especially executives, to be involved in many simultaneous matters. If one matter closes, you may not be able to take them off legal hold, as their ESI may be relevant in another. That's why you should have a central list that details all active custodians and the matters with which they are associated. Look for systems that can create these reports automatically, and, better yet, update them without manual intervention.
Step Seven: Release Legal Holds
You'd be surprised how many companies struggle releasing custodians from a legal hold. The problem often relates to the lack of a master custodian list. Without one, many organizations simply leave custodians on hold, even when it may not be legally necessary. This leads to over-preservation, over-collection, increased storage and review costs, and additional exposure to risk. Make sure your release process includes cross checking other matters and notifying custodians that they can stop preserving ESI and resume normal document disposition procedures.
Hopefully these steps have provided you with an overview of the entire data preservation process, rather than just “legal holds.” For a more complete resource dedicated to preservation, download Exterro's Comprehensive Guide to E-Discovery Preservation today!