Migrated from eDJGroupInc.com. Author: Barry Murphy. Published: 2010-02-04 20:10:12 Since the Amendments to the Federal Rules of Civil Procedure (FRCP) took effect in 2006, organizations have struggled to meet their duty to preserve potentially responsive information. Morgan Stanley was the first large company to create big headlines for problems with preserving data and a resulting $12.5 million fine to FINRA. In the case of ACORN v. County of Nassau, 2009 WL 605859 (E.D.N.Y. Mar. 9, 2009), the courts found that “the County’s failure to implement a timely litigation hold amounted to gross negligence [and] the court awarded plaintiffs their costs and attorney’s fees.”As a result of the potential for significant sanctions, one of the first information governance initiatives organizations seek to implement is legal hold – or litigation hold (yet another example of how much confusing industry jargon is out there). Implemented well, legal hold can help an organization avoid sanctions and improve both the efficacy and efficiency of downstream eDiscovery activities – collection, processing, and review.Legal hold initiatives, though, are often implemented in ways that don’t help organizations at all. In most of these cases, the lack of success is attributable to confusion about what is involved in a legal hold initiative. Contrary to popular belief, legal hold is not just a software application elixir, or a process encompassing notification and tracking; rather, legal hold initiatives consist of a number of elements, all of which must be put into place with synergy.
- Understanding of where information lives. In order to ensure that potentially responsive information is not destroyed, it’s imperative to know what you have and where it is stored. This is often referred to as a data map. Because most organizations store information in multiple places – file systems, email servers, backup tapes, content management systems, etc. – creating this data map can be a huge challenge. It is, however, an absolute necessity.
- Process to notify custodians and track compliance. An important part of legal hold is notifying custodians that they are on hold and should not destroy any information. It is also important to track that the custodian received and acknowledged the notification. Even better is to have an integrated process whereby a custodian gets an email notification of being on hold, as well as link to an area where the custodian (if he/she is cooperative) can upload any shared drive contents and desktop contents as required.
- Application to manage placing holds across the various repositories where information lives. Too many organizations mistakenly believe that notifying custodians to stop destruction of information is enough. Let’s just be frank – it’s not enough. Given the many places that information can live, organizations need to be proactive about reaching out to repositories and either placing information assets on hold where they live, or moving them to a dedicated legal hold repository.
- Dashboard to monitor the legal hold process. A legal hold initiative is only as good as its real-world execution. In order to ensure that the initiative actually does reduce risk and costs, the process must be monitored. The best and most efficient way to monitor it is through a dashboard, a single user interface where legal staff can see graphical displays of notifications and acceptances, the amount of information being put on hold across various repositories, and a data map showing the percentage of systems where holds have been put into place.
- Integration with records management systems. Many organizations have records or content management systems that manage the disposition of corporate records. First, records management systems can execute legal holds on the content they manage, but they are not holistic legal hold solutions. Second, it is important that a legal hold initiative be able to override any disposition schedules in the event that a corporate record is potentially responsive to a pending or anticipated matter.
A successful legal hold initiative can provide positive business results in the form of reduced risk (e.g. avoidance of sanctions) and reduced eDiscovery costs. To learn more about legal hold solutions in the market, click here. To connect with an eDiscoveryJournal legal hold subject-matter expert, click here.