Migrated from eDJGroupInc.com. Author: Mikki Tomlinson. Published: 2013-01-07 04:00:13Format, images and links may no longer function correctly. This is the second in a series of blogs about legal hold. As I wrote in Part I, I have received an influx of questions about legal hold over the last several months. More specifically, around how legal hold really works on the corporate side of the fence. All of these questions have come from legal professionals – some that are new to eDiscovery, some that deal with eDiscovery on a semi-regular basis, and some that deal with eDiscovery quite often but are not in the legal hold trenches of a corporation. Thus, I set out to write this FAQ blog series.
I received a great deal of email in response to Part I of this blog series. Those emails were specific questions to which I responded directly; however, I will also incorporate them into this series (the anonymity of those presenting questions will be maintained). If you have questions relating to effecting legal hold in an enterprise, please feel free to reach out to me at Mikki@eDJGroupInc.com.
For purposes of clarity and consistency, the use of “legal hold” terms as defined in Legal Hold FAQ’s – Part I are repeated directly below.
The phrase “legal hold” is broad. For purposes of this discussion, legal hold is defined as part of the preservation phase of a litigant’s obligations; legal hold is not the processing, review, production or presentation phase of discovery. I find that legal hold is most easily digested when broken down into three core parts: (1) legal hold notification; (2) preservation in place; and (3) preservation by collection. Note: Legal hold can – but does not always – encompass actual physical collection of documents for preservation. Conversely, legal hold can – but does not always – encompass notification of data and document preservation. In other words, legal hold may include any one or combination of (1), (2), and/or (3).
1. Legal hold notification. Legal hold notification is the process by which counsel advises “custodians” and “stewards” of data and documents of their obligations and responsibilities related to management of information subject to legal hold.
a. Custodian of Data: A person in charge of creating, maintaining and/or managing data. A custodian of data may also be referred to as an owner of data.
b. Steward of Data: A person in charge of a computer system or process. A steward of data is generally responsible for the system that holds the information, but is not responsible for generating the content that is stored in the system.
2. Preservation in Place: Preservation in place means that information is preserved in its current location. The two most common ways preservation in place is carried out are:
a. Custodian/Steward: Preservation by way of custodians and/or stewards managing same (e.g., ensuring that data is not deleted).
b. Physical Preservation: Preservation by physically locking down data within its storage location/system in a way such that the data cannot be deleted by an end user.
3. Preservation by Collection: Preservation is managed by way of collecting a copy of data and maintaining same in a secure location. Ideally, collection is carried out in a “defensibly sound” manner (e.g., metadata is in tact and the collection is auditable).
Legal Hold FAQ’s – Part II:
How do corporations staff the legal hold function? There is not one specific model that is a guaranteed winner. The number of personnel, position types, and reporting hierarchy are dependent upon many things, among those: (1) litigation footprint; (2) corporate culture, and (3) risk tolerance. Here are a few models that I have worked with; again, which one might work best in your organization is subjective and requires an assessment of your unique culture and needs.
What information should a legal hold notice have? Although one can always find an exception, a legal hold notice will generally contain the items listed below. The decision as to what goes into each notice is made by counsel and on a case-by-case basis. *Note: none of the information herein is or should be interpreted as legal advice; this information is provided for purposes of sharing in-the-trenches experience of a non-attorney eDiscovery professional.
1. A description of the matter;
2. Scope of documents and information subject to preservation obligation (such as description, types, date range);
3. Instruction on preservation obligations; and
4. Who to contact with questions.
Who receives legal hold notices? Just as with what goes into a notice, it is ultimately up to counsel to determine who will receive the notice. Here is a typical run down and definition of those that counsel might select to receive a notice:
1. Legal hold custodians: Employees that counsel believes may have created or may be in control of data subject to the preservation obligation;
2. Termed legal hold custodians: Former employees that counsel believes may have created or may have been in control of data subject to the legal hold obligation; the notice typically to the former employee’s successor and/or supervisor;
3. Data stewards: Employees that are responsible for systems that counsel believes may contain data subject to legal hold. Note: a data steward is typically not responsible for, and may not have specific knowledge of, the content created in the system. Rather, a data steward is responsible for the system itself (e.g., a database administrator).
4. Executives and business unit leads: Courtesy/FYI copies may be sent to certain executives and/or the managers of business units for informational purposes.
5. Legal team members: Members of both in-house and retained counsel team members receive courtesy copy for file.
What components outside of the notice itself are part of the framework? There is not a one size fits all solution (I’m beginning to sound like a broken record). However, there are standard components that can go into a solid legal hold program; these are listed directly below. Which components are in place and the weight of importance given to each are unique to each organization.
1. A method for custodians to confirm receipt and acknowledgement of their responsibilities as a legal hold custodian.
2. A method for custodians to indicate others that may also be subject to the legal hold.
3. A process to issue a legal hold upon a triggering event.
4. A systematic trigger to amend a legal hold when necessary (e.g., when an amended complaint is filed).
5. A method to audit legal holds. For example, an audit program might include, but is not limited to, testing the following statements:
a. Legal holds are issued and amended quickly upon triggering events;
b. Oversight of custodian acknowledgement of legal holds is managed;
c. Legal holds are released in a timely manner.
Stay tuned for Legal Hold FAQ’s – Part III. If you have a legal hold question, please post it in the comments section below or email me directly.
eDJ Group Consultant and eDiscovery Journal Contributor – Mikki Tomlinson (mikki@eDJGroupInc.com)