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Finding Key Players in Legal Hold Notification, Preservation and Collection

As a practitioner, I have had many conversations and discussions recently on leading practices and trends related to Ted O'Neillitigation hold notifications and preservation orders.  Organizations routinely have the need to effectively manage preservation for litigation, internal investigations and for varying regulatory purposes.

Since the amendments to the Federal Rules of Civil Procedure there has been much discussion on this topic, but limited practical solutions to the problem.  The Pension Committee decision has made notifying & managing custodians & “key players” effectively a core requirement for most legal departments.

The challenge with the legal hold notification, preservation & collection processes for most organizations is the “ad hoc” nature of defining systems of record, ESI & custodians & executing preservation in a defensible manner.  Notifying custodians a timely manner and keeping an audit trail to defend the process consumes significant time & resources and is inherently risky…if the organization relies on the custodian for preservation.

The Preservation Order

The ability to issue a legal hold notification or a preservation order to all custodians & key players has become an essential component in any defensible legal preservation process.  This usually includes a mix of end-users (creators) and IT & records custodians.

Managing Your Key Players

In the post-Pension Committee environment the standards have be raised and defensibility can hinge on how well the organization executed in two key areas:

  • Ability to manage the legal hold notification process
  • Ability to mitigate risks of spoliation

The first process is intended to prevent the second…but lessons learned in the age of “Big Data” & “Choice Computing” is that there is too much risk to the organization to rely on custodians & key players to preserve.  Most custodians are not IT experts and although may have good intentions…they don’t know their “systems of records”, retention & disposition policies, back up procedures etc.

The leading practice is to notify all relevant custodians & “key players” of the duty to preserve all potentially responsive information, whether in electronic form or paper form as quickly as possible, request and obtain an acknowledgment from each custodian, retain the acknowledgment and send periodic reminders.

In most cases it may not be reasonable to rely on the custodian involved to preserve responsive information making defending the process more challenging.  The more pragmatic action is to instruct the recipient to take no action until notified otherwise and rely on business processes & technology to identify, preserve & collect in a defensible manner.

Managing Preservation & Collection as a Business Process

Relying on manual processes, spreadsheets and “old school” methods is problematic and cumbersome for managing & tracking legal hold notices.   The “one off” nature of using spreadsheets & other outdated tools makes the process harder to defend.  The risk of spoliation, fines and sanctions makes relying on the custodian to preserve and disclose all sources of responsive information risky to protect the organization’s interests.

A good process includes a defensible hold notification process & a collection plan which is not controlled & managed by the custodian.  The successful execution requires process & technology.  An audit trail of events throughout the case has become an essential element of defending not only what is being produced, but also what has not been produced & why…Privilege, Confidentiality, Classification etc. There is also the continued need to demonstrate the authenticity of the information being offered into evidence and that effective chain of custody procedures were in place since actual or constructive notice of the duty to preserve.

Preservation & collection should be managed & controlled by “legal”…not the custodian.  Collections must be done in a forensically sound manner & requires people, process & technology that go far beyond desktop tools.

Leverage tools in the data center to identify, systems of record, ESI & custodians…work with & leverage custodians…but don’t rely on them!!

The growing trend is to understand the custodian’s behavior for creating, managing, storing and retaining information…from their perspective…where do they put it?  What applications, devices, and service providers do they use?  Identify portable devices, home computers, Cloud…etc…look for spoliation risks to the organization outside of identified systems of record.

Understanding all these different elements of the People, Process & Technology in your eDiscovery process is the key to controlling costs & mitigating risks.

If you would like to discuss this topic further…please post a comment to this blog post.

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