5 Best Practices for Managing Legal Holds

In our last column in this series on the fundamentals of e-discovery, we discussed how data preservation is more than just a legal hold—and that is certainly true. But in all honesty, getting a legal hold issued in a timely, defensible manner (and then ensuring that custodians comply with it) is quite possibly the most important step in the e-discovery process. It demonstrates that you have defensible policies in place and that you follow them, keys to establishing you intend to comply with your obligations. That in itself can be enough to avoid the most severe e-discovery sanctions, which respond to malfeasance that demonstrates an “intent to deprive” opposition of responsive information.

So for the sake of this article, let’s assume that you understand the importance of a legal hold to your e-discovery processes. You want to comply with the requirements of the Federal Rules of Civil Procedure (FRCP). So what are some best practices you should follow to ensure that the court sees your process in the same light? Here are five direct from Exterro’s Basics of E-Discovery Guide that can help you.

1. Don’t delay issuing a legal hold.

The "reasonable anticipation of litigation" standard for when preservation obligations begin is highly ambiguous. However, rather than waiting for litigation to commence before issuing the legal hold, which many companies still do, you're better served by identifying preservation-triggering events and using them as the starting point for your legal hold process. Every situation is different, but you should be able to build out some standard protocols. For example, if your company discovers a major defect in one of its products that has the potential to cause physical injury, it's probably reasonable to assume that litigation will soon follow. The cardinal rule here is: If a judge might see the event as “reasonable anticipation” of a law suit, then you should too.

2. Develop a custodian interview strategy.

The duty to preserve potentially relevant ESI applies to all custodians, including those who may have had only a passing encounter with the central issues in the litigation. Zubulake established that legal teams are expected to conduct a reasonable investigation and evaluation of the relevant facts and circumstances surrounding the matter to scope the legal hold, both in terms of relevant custodians and data sources. One of the most effective ways attorneys can rapidly turn up necessary information for legal hold scoping is through custodian interviews. To be effective, the custodian interview process must be conducted in a consistent, repeatable manner to ensure the information that results can be easily processed and acted upon.

For a helpful tool during this process, download Exterro's Custodian Interview Template.

3. Develop carefully defined reminder, update and escalation schedules.

You recognize the trigger, identify the relevant custodians, prepare the legal hold notice, and send it out. Guess what, you're not done; you’re just getting started! You also have to monitor compliance. What this looks like in practice will vary from one organization to another. At a minimum, reminder notices should be distributed on a regular schedule, which is especially important for legal matters that last a while and require custodians to preserve data for prolonged periods of time. In some cases, the information provided in the legal hold might change as more is learned about the matter. For example, the date range for which ESI must be preserved might need to be expanded. Such changes need to be communicated to custodians in a systematic fashion. But reminders and updates won't do much good if some custodians are simply ignoring the notices altogether. For such scenarios, the escalation notice is a much more powerful tool. It's a communication sent to an unresponsive custodian's direct supervisor, alerting him or her that the custodian's inaction is exposing the company to risk and requesting intervention. If the legal hold doesn't get the custodian's attention, chances are that an email or phone call from their supervisor will.

4. Use templates.

When it comes to legal holds, consistency is everything. That applies to everything from the initial legal hold notice to all reminders and interview questionnaires. Remember, custodians aren't legal experts, so simplicity is critical. Once you find notice language and a format that works, stick with it. Templates not only streamline the hold process by eliminating the need to re-create each legal hold notice, but also help improve compliance rates as custodians grow accustomed to the same type of communication and what's being asked of them.

5. Make documentation a priority.

At some point, your internal legal hold process and actions may be placed under scrutiny, and you may be asked to produce a record of your activities or answer some specific questions about the process. Rather than rely on memory, keep a log of steps taken, key decision points, and process milestones. With good documentation, you can easily demonstrate to the court that the legal hold process was implemented in a reasonable, good faith manner, even if evidence was lost. Remember, courts don't expect complete perfection. Documentation need not disclose strategy or legal analysis. Rather, it should be focused on the mechanics of the process: the who, what, when, where, and why of various tasks.

Follow these best practices, and you’ll be well on your way to fulfilling your obligations to preserve data!