Migrated from eDJGroupInc.com. Author: Greg Buckles. Published: 2014-03-02 19:00:00Format, images and links may no longer function correctly. 

One of my favorite client’s just put in her notice and that got me thinking about managing legal holds with our increasingly mobile workforce. We all know those key custodians who are the “go to” person when you need to understand the history and critical details on ESI data sources. These ‘system ’ or ‘perpetual’ custodians are named in almost every legal hold. Their departure can have a disproportionate impact on discovery events unless they can properly document and transfer knowledge prior to their departure. It took me a solid month to create the ‘discovery bible’ documenting process and sources when I left my last position as the ‘corporate custodian of record’ back in 2006. We had a contract in place to cover any future calls, affidavits or testimony that was reviewed and approved by Symantec’s legal department. That gave my old team confidence that they could call if stuck or needing confirmation. Not every custodian has that flexibility and many do not depart on friendly terms. So how can you mitigate the potential impact of legal hold custodian departures when you know that they are going to happen?

Awareness/Alerts – The legal department needs to know when a custodian’s status will or has changed. Traditionally, we have engaged with the HR and MIS departments to add a workflow step to check the master hold list or a custom property/AD group during normal employee change procedures. Although this works, it generally adds an outside dependency to legal holds that can increase risk and effort in hold compliance. As legal hold solutions mature, they are becoming increasingly integrated with Active Directory, SAP and other HR systems. Exterro just announced Fusion Employee Monitor to address this exact challenge. A fast check of other preservation providers showed that Legal Hold Pro and Recommind also offers this functionality, while several others have it on their short term road map (Access Data, Acaveo, DSiHold, Relativity Method). Remember that internal promotions or transfers can seriously complicate preservation compliance. Legal should engage the process to make sure of a smooth hand off.

Knowledge Transfer/Documentation – This is where you really hope that your key custodian is leaving on good terms with the company. The best employees will push themselves in the weeks prior to departure to document everything possible and to make sure that they transfer as many keys to the corporate closets (think skeletons here) as possible. The legal department should work with HR to create a separate custodian termination checklist and process that identifies key data sources and case decisions to minimize risk and demonstrate a formal business process to cynical plaintiffs. System custodians may already have been interviewed or documented legacy information if you have a corporate data map. Case managers should review all active cases for that custodian and verify collection chain of custody forms or preservation action logs. Custodian case reports across all cases used be a specialty feature, but are becoming more common in Corporate eDiscovery Platforms. Retained counsel should be notified of the recent/impending departure to solicit input on special handling or priority collections.

Accessibility/Recall Provisions – Just because a custodian is gone, does not always mean that legal cannot access them in need. Legal should evaluate each custodian and attempt to ensure future availability via contract. Sometimes it may be worth it to carefully talk with the new employer and get their agreement to make the custodian available. The new employer may designate a legal contact that will cover any time with the custodian’s new supervisor. Third party subpoenas should be a last resort. No one wants a hostile witness on the stand and day rates get a lot cheaper before the employee leaves the company.  With the rise of cloud repositories, you will want to identify them and access credentials.

Preservation Collections – A majority of corporations currently rely on custodian’s to ‘do no harm’ for broad preservation of unstructured ESI. These data sources (file shares, laptops and more) may need proactive collection when you know that custodian is leaving. Acaveo dropped me an interesting note that their next release will include a filter for orphaned data that would output locations and items without active AD members on their ACL. Selective preservation is much more credible when the custodian is involved and can give the discovery team feedback on shares, SharePoint sites and departmental Exchange folders. Enterprise preservation systems (hold searches) in the new Microsoft 2013 architecture, archives and more can prevent these early collections. Cloud repositories may require written permission for later access as well as the credentials.

All of these concepts should be incorporated into your mature discovery lifecycle. Custodians, data systems and devices are constantly leaving, breaking, being replaced and otherwise challenging your preservation process.  These changes do not have to derail your discovery if you have a work flow in place to ensure awareness, transfer, accessibility and preservation.

Greg Buckles can be reached at Greg@eDJGroupInc for offline comment, questions or consulting. His active research topics include mobile device discovery, the discovery impact of the cloud, Microsoft’s 2013 eDiscovery Center and multi-matter discovery. Recent consulting engagements include managing preservation during enterprise migrations, legacy tape eliminations, retention enablement and many more.

Find Greg at the following upcoming events:

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