By Tim Rollins
On paper, releasing a legal hold seems fairly straightforward. A matter reaches a resolution, preservation obligations are lifted, the legal team informs data custodians that they are no longer required to retain electronically stored information (ESI), and disposition policies are restored. But in practice, many organizations struggle with this seemingly simple process.
The consequences of failing to promptly release legal holds are more significant than many organizations realize. Prolonged holds can place unnecessary burdens on employees who have more important things to worry about than complying with legal hold obligations. Unnecessarily retained electronically stored information (ESI) leads to the over-preservation of data, which can increase management efforts and costs, as well as expose organizations to future legal liability.
The most significant factor that contributes to the over-preservation problem is anxiety over disposing of ESI that may still be legally responsive. That fear often derives from a lack of clarity around what ESI is on hold and also how each hold is associated with its parent matter, which may have several different holds attached to it. Indeed, it is frequently the case that a custodian is on several simultaneous holds. When one is ready to be released, legal teams have to be mindful of where these overlaps exist and take appropriate cautions to continue preserving data on hold for other matters.
Vague e-discovery preservation standards contribute to the anxiety. Differing views on what constitutes a defensible preservation process can lead organizations to err on the extreme side of caution and keep everything. There are other legal gray areas as well. For example, a court ruling might close out one matter but trigger an appeal that carries its own preservation obligations. Likewise, one lawsuit might portend a number of future matters around a similar set of issues, which means that even if a single lawsuit is resolved, the same preservation obligations might still persist as there is still a reasonable likelihood of future litigation.
Communicating Hold Release Instructions to Custodians
Notifying custodians and data stewards that they are no longer obligated to preserve ESI is one of the commonly neglected or incomplete steps in the legal hold release process. Many legal teams focus on the custodians they know about but pay less attention to the IT staff, records managers, and archivists that are also a part of the hold process. It's really important to have a comprehensive approach that addresses all parties.
Another often ignored facet of the hold release process is the importance of educating employees on the purpose of releasing legal holds. It isn't uncommon for an employee who is involved in multiple holds to miss release notifications and never delete anything. A comprehensive release process involves educating and training employees about what releasing a legal hold involves and how it helps to mitigate future liability.
Reinstating Normal Retention Policies
The final step in the legal hold lifecycle, releasing the hold, often presents legal teams with the greatest challenges. Before a custodian can be released from a legal hold, legal teams must ensure that preservation obligations have ended and that the individual isn't subject to concurrent active holds that involve overlapping data. This can be a daunting task for large organizations with hundreds of active legal holds and potentially thousands of custodians at any given time.
If you'd like more detail on this topic, Exterro and RSD's “Four Step Guide to Defensibly Releasing a Legal Hold," provides guidance on creating a defensible legal hold release process.
This guide includes best practices for:
- Verifying the status of a legal hold to ensure a release is appropriate
- Reinstating regular document retention policies and procedures
- Informing custodians that they are no longer subject to legal hold obligations