Migrated from eDJGroupInc.com. Author: Mikki Tomlinson. Published: 2012-12-17 11:17:46  During the last several months I have received an influx of questions about legal hold.  More specifically, around how legal hold is actually executed 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.  Because of the number and nature of questions, it seems a Legal Hold FAQ is in order.  I will stick to the very basics in this blog, which is Part I of a series.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 the same data (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:Who is responsible for legal hold?  Counsel – in-house and retained – are ultimately responsible for ensuring that a proper legal hold is carried out.Who actually handles legal hold? Counsel has the final sign-off on issuing a legal hold, but staff and/or technology support the process as well.  Support staff typically reports to the corporate legal department.  However, some companies use support staff from the corporate records and/or IT departments.Is legal hold sometimes outsourced as part of a managed services offering?  In my experience, no.  In addition to legal and matter specific expertise, it is essential that those issuing and supporting legal holds have an intimate understanding of company culture, business goals, data types and systems, and working knowledge of the custodians and stewards of data that are subject to the legal hold.What is the best technology to use for legal hold?  There are a plethora of tools available and there is most definitely not a one-size-fits-all for any part of the process.  The best tool(s) depends upon a company’s litigation footprint, profile, culture, vertical, budget, etc.  In order to determine which tool(s) best fits your company’s needs, I recommend a thorough requirements gathering exercise and request for proposal process.  Here is some basic information about how these tools are packaged and utilized.

        1. Legal hold notification.  Legal hold notification can be handled a number of ways, including:

        a. Manual management with standard office software, such as spreadsheets, email and word processing tools.

        b. Commercial off-the-shelf legal hold notification tools installed behind the firewall or as a hosted service.

        c. Custom developed tools.

        2. Preservation in Place:  Some systems, such as document management systems and archives, provide the ability to lock files within the system  for purposes of legal hold.  This capability may be part of the original system, or  may be accomplished by third-party add on tools and/or custom development.3. Preservation by Collection:  There are a myriad of collection tools on the market.  Some collect multiple file types from multiple systems; some collect limited or specialty file types from specific systems.  Collection may be handled by in-house staff and/or as an outsourced service.Stay tuned.  A deeper examination of roles and responsibilities, and a discussion on framework of the legal hold process will be included in Part II of this blog.  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)   

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