Staying Ahead of Litigation Requirements for Preservation

E-Discovery preservation is no longer a simple checkbox in the process of managing civil litigation. With the rapid evolution of court expectations, the increasing complexity of electronically stored information (ESI) sources, and the growing capabilities of modern e-discovery solutions, legal professionals and IT managers are facing new challenges that demand a more sophisticated approach.

Courts now require far more than the implementation of a standard legal hold to meet preservation obligations. Organizations must understand the nuances of what courts expect, the strategies for identifying and preserving relevant ESI, and the tools that can effectively streamline this process. For legal professionals, paralegals, and IT managers tasked with navigating these challenges, the stakes couldn’t be higher missteps in preservation can lead to significant legal and financial penalties.

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. This blog will explore some tips and concepts that can help you ensure you're meeting your preservation obligations.

For more information about ESI preservation for e-discovery, download our updated Comprehensive Guide to Preservation today!

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 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.

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.

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. 

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.

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 with solutions like Exterro Employee Change Monitor can give legal immediate access to this information.

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.

Download the complete Comprehensive Guide to Preservation today!