Electronic Discovery – Legal Hold

Legal HoldOne of the first steps taken in a litigation matter is to put in place a “legal hold” with the client. It might also be referred to as a “litigation hold”. When it comes to electronic discovery, this is one of the most important steps and it must not be overlooked.

Litigation matters always take longer than we think they will. We want to make sure that by the time we need to collect the relevant documents from the client that it is all there, ready and waiting. Sometimes it can take years before any client documents are collected.

I worked on one case where a “legal hold” was not in place and by the time we went to collect our client's e-mail, about two years later, their IT department only had the most recent six months of e-mail available. The company had a record retention policy in place which meant they only kept a certain number of months of their e-mail data.

In an electronic discovery litigation matter, you are usually collecting electronic data for a pertinent time period that relates to the reason the litigation began in the first place. If the “legal hold” is in place, that pertinent time period of electronic data will be protected in case it is needed at some point in the litigation matter.

To put it simply, a “legal hold” is simply a document (a notice) that is prepared by an attorney. The “legal hold” will describe which documents are relevant to the litigation matter and it will reference both hardcopy and electronic documents. It will instruct all employees of the company not to destroy any of the documents. It will explain that all of the relevant information must be preserved. This can include, for example, paper files in file drawers, any electronic files on the employees' computers and devices, e-mail systems maintained by the IT department and backup tapes. Any future documents relevant to the litigation matter must also be preserved.

This “legal hold” document is distributed to specific custodians who are believed to have relevant documents and it is distributed to members of the IT department.

One of the trickiest issues with a “legal hold” is that it must be maintained over time even if there is turnover in the employees of the company. Ideally, there is an automated and trackable system that sends reminder notices.

If you want to see what a sample “legal hold” or “litigation hold” document looks like, you can find them by doing a Google search.


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    • elmocoso

      It is also a fairly standard feature of many email archiving systems. Data is stored immutably and can be preserved for the duration of the hold – regardless of the custodian status. Some also function to suspend existing retention periods – although some tools such as Office365 do so in a very brute force fashion. Legal teams needed for due dilligence here.

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