Information governance and eDiscovery are our focus at Sherpa Software, and you can’t discuss either without mentioning Legal Hold. The legal hold process (also called litigation hold, these terms are used interchangeably), is part of eDiscovery and therefore also falls under the larger umbrella category of information governance. The Federal Rules of Civil Procedure require an organization to preserve all data related to litigation once it is anticipated. Legal holds can also be triggered by subpoena, audits, investigations or criminal charges.
Under regular circumstances, when a legal situation is not occurring, most companies will have retention policies in place to govern the defensible deletion of redundant, outdated or trivial information. This helps to keep IT resources available for current, relevant data while reducing risk and liability. When pending litigation is anticipated, however, these policies must be suspended to avoid inadvertent spoliation of evidence. Litigation hold will help to preserve data and halt any deletions via policy, automation or end user actions.
Proactively managing electronic data helps a company avoid liability, expense and risk. In a legal case, all data related to the matter must be available for discovery prior to litigation. Automated legal hold software is invaluable because if data is destroyed, even accidentally, it can cause adverse judgments and sanctions against your company in court.
Litigation holds have two key parts – notification and suspension of deletion. The details of these steps vary from company to company and case by case, but essentially they follow basic steps:
1: Hold notification: If applicable, data custodians are notified that they are under legal hold for a given matter for a specific set of relevant data. Custodians should specifically be instructed that data related to that matter should not be modified or deleted. Custodians should formally acknowledge the hold and follow company policies to preserve the applicable data sets.
2: Suspension of deletion: Automatic deletion processes are halted for specified custodians and preservation policies are enabled (in place or segregated) to protect the relevant data sets.
3: Ongoing preservation obligations: Custodians involved in anticipated litigation may also have current and future data subject to litigation hold. Policy and process should be put in place to ensure that all relevant communication is captured. Additionally custodians subject to legal hold should be reminded on a timely basis and the process audited to ensure data integrity is maintained.
4: Once the litigation has ended, the legal hold is removed and regular retention policies regarding the custodian and information go back in to effect. Data collected for litigation can be disposed of according to policy.
If executing a successful legal hold (in order to have a successful case) is essential because it saves the company money and helps to reduce risk, why do more companies not put a litigation readiness plan in place? The truth is that they are overwhelmed and do not know where to begin. Storing electronic data and managing information systems can be quite a multifaceted project and many companies don’t believe they have the time to focus on such matters. Beginning this kind of project can feel like a tricky puzzle in which you might not even have all the pieces available. Also, most people don’t enjoy preparing for potential legal disasters, especially if these situations seem relatively unlikely or very far off on the horizon.
But if you already have software in place that handles data management and legal hold, creating a litigation readiness plan becomes that much easier. Embarking on an information governance quest is a less daunting journey with automated legal hold software.
Sherpa Altitude IG software assists your company in completing the necessary steps of a legal hold process and is an alternative to traditional holds. Our Altitude IG platform handles many elements of legal hold from the first notification to closing a matter in a defensible and repeatable process. Unlike many other solutions, you also have the option to establish retention policies to implement under regular circumstances when no pending litigation is anticipated. Altitude IG offers full eDiscovery search and collection capabilities in addition to legal hold notification. There is a lot to be said for a single platform that can handle all your eDiscovery needs from policy management to legal hold, search collection and analysis in one place.
Sorry, amnesia isn’t a sufficient Legal Hold policy…