Prepare Far in Advance for Litigation Holds

A legal hold is a protocol that preserves evidence likely to be responsive in litigation. The process is part of a company’s overall information governance program and requires cooperation and communication among the legal, information technology, records management and compliance departments. It pays to prepare for the legal hold before it happens. Companies should identify their ESI, create defined and documented processes and conduct training long before a legal hold is issued.

The preservation process begins with an inventory of a company’s data, with a data diagram to identify all data sources and types, retention policies and locations. The IT department should determine how, technically, to achieve preservation for each system before the hold is imminent.

Also, it is best to identify correct procedures for defensibly transferring data to third parties before it is turned over to outside counsel or a discovery vendor. And because data can be modified, deleted or corrupted quickly, staff must be trained and alert to events that may trigger such obligations in the first place.

After the hold is issued, the company should track compliance. Although any form of tracking is acceptable, legal hold software can improve defensibility by automating the process.

Once obligations are complete, the in-house team should promptly communicate the release of the legal hold and the okay to resume regular retention procedures. The is important to ensure that the company does not incur the cost of storing unnecessary data.