When an organization reasonably anticipates litigation—for example, an employee files a formal complaint of workplace harassment, a contract for services is canceled, or there is a plan to initiative litigation–organizations have a legal duty to locate potential evidence and safeguard it to ensure it is available for use in court.
One of the ways companies preserve data is by executing an eDiscovery hold, also frequently called a litigation or legal hold. An eDiscovery hold is a formal notice issued to custodians–employees who own the data within the organization—and data stewards–anyone in IT or records management that manages data and its storage and deletion—communicating the legal obligation to preserve potentially relevant information to the matter.
The eDiscovery hold notice, which is typically issues by the in-house legal department, tells custodians and data stewards what data is potentially relevant and what they should do to preserve that evidence that could be needed for litigation or an investigation.
Why is an eDiscovery hold important?
When defending or pursuing a legal claim, or conducting a regulatory investigation, parties need access to potential evidence. An eDiscovery hold helps ensure the potentially relevant information is preserved, and also helps prevent spoliation, which is the destruction, alternation, or loss of potential information, both physical documents and electronically stored information (ESI). In fact, it’s required under common law as expressly referenced in the amended Federal Rule of Civil Procedure (FRCP) 37(e).
eDiscovery holds are essential to upholding the tenets of justice in the legal system by helping prevent the spoliation of evidence that might be vital to one party but unfavorable to the other. The consequences of ignoring a legal hold can be severe: Courts can impose monetary sanctions, instruct the jury about the lost evidence and what position it might have supported, or even throw out an entire case.
What are the roles of legal and IT in eDiscovery holds?
There’s no time to waste when an eDiscovery hold is issued, and IT must be prepared to act on it immediately.
Legal is responsible for identifying the triggering event, the decision-making (and most of the planning) involving eDiscovery holds. Legal also has a supervisory role over holds and collection efforts.
IT’s role is to assist legal in defining the scope of potentially relevant data and executing technical tasks, including:
- Identifying data custodians that might possess relevant data or knowledge;
- Identifying data sources and data types;
- Ensuring IT tasks are managed appropriately, such as suspending data retention and deletion practices; and,
- Collecting data or ensuring that it is preserved in place.
IT should plan to work in concert with legal to develop reasonable data collection and chain of custody processes before implementing collection efforts.
What are the steps in the eDiscovery hold process?
The eDiscovery hold process entails a series of steps to ensure that potentially relevant data to the legal matter is preserved. In an efficient process, legal departments manage data preservation with IT’s help (and often that of a forensic collection expert) to collect and store the information that may be needed to prove or defend a case.
Below is a basic diagram of eDiscovery hold workflow:
Identify the triggering event: When legal determines there is a triggering event, such as anticipated litigation or a government investigation, the duty to preserve potentially relevant information starts.
Assess scope: Once legal has notified IT that the organization has an obligation to preserve data for a potential matter has attached, the teams work together to determine what types of data should be preserved, the data sources, and which data custodians or stewards should be interviewed. Data types, such as messaging and chat applications, mobile device data, social media, and even security camera footage, should not be overlooked.
Notify custodians and data stewards: Once data custodians and the types of data that need to be preserved are determined, the legal department will issue a legal hold notice. Individual custodians will be told not to delete or modify their own data, and may include specific instructions on what to retain. IT may be instructed to implement a “silent” eDiscovery hold on a custodian’s data (without their knowledge), or collection specific data into a separate repository.
Secure acknowledgment of the eDiscovery hold notice from custodians: Upon receipt of a hold notice, custodians should acknowledge that they have received the notice, understand their data preservation obligations, and are complying with its terms.
Interview custodians: Custodians are a key source of information that will help determine the scope of eDiscovery. Custodian questionnaires can provide information to legal teams on systems the employees use, where they share work product, what cloud-based services are used, and who else might be relevant to the pending matter.
Suspend regular retention schedules: When an eDiscovery hold is issued, the IT department is typically instructed to suspect routine document destruction policies that could conflict with the eDiscovery hold. This ensures potentially relevant data is not inadvertently destroyed.
Monitor eDiscovery hold compliance: Legal may also distribute period reminders so that recipients know what data is still subject to the hold. Legal and IT teams should also monitor compliance on an ongoing basis to ensure potentially relevant data remains accessible and intact.
Document preservation efforts: All steps, from how custodians subject to the eDiscovery hold were identified, who acknowledged it, to what other actions took place, are critical to proving defensibility. Should data be lost through a natural disaster or infrastructure failure, for example, the only way legal can defend against a claim that the organization intentionally destroyed data is by demonstrating that all steps were taken to preserve potentially relevant information.
Early data collection: Although not necessary in every instance, data collection can help avoid risks of information being lost or destroyed (even inadvertently). It involves extracting potentially relevant ESI from its source and maintaining it in a secure repository. Some data can be preserved in place so that it does not need to be stored in a second repository.
Establish chain of custody: Documentation of all steps taken with regard to data during a case, including what type of data it is, when it was collected, how it was collected, and by whom is critical. If evidence is challenged in court, the chain of custody is how legal proves that it was not modified or tampered with.
Release the hold: Once litigation or an investigation concludes, the eDiscovery hold is released. This allows the organization to resume managing data in accordance with company retention policies.
By taking these steps, organizations can reduce the risks associated with data preservation.
An ounce of prevention to minimize litigation risk
Litigation happens all the time, and eDiscovery holds are critical to ensuring a smooth eDiscovery process. They establish the duty to preserve potentially relevant information defensibly and ensure the integrity of potential evidence that is presented during the case. Taking the time to create a repeatable, defensible technology-driven preservation program can reduce legal and IT costs and litigation risk.
UnitedLex can help with your eDiscovery hold and data preservation efforts. Let’s talk.
