A legal retention period is usually initiated by written notice from the legal department to custodians and data processors who may have relevant information about the dispute. The notice directs these trustees to retain – not destroy or alter – all information that may be necessary for discovery, including electronically stored information (ISI) such as emails and spreadsheets, as well as paper records, notes, logbooks and other tangible items. Retention also requires custodians to suspend routine recordkeeping practices, such as automatic deletion of emails or records management schedules. A legal suspension, also known as a litigation suspension, is the process by which organizations retain potentially relevant information when litigation is pending or reasonably expected. By issuing a legal freeze, organizations inform custodian banks of their obligation not to delete ISAs or physical documents relevant to a case. f. Effective communication of legal retention should be an integral part of an organization`s information and records management program. In the clearest cases, the retention obligation is triggered by the express notice of an upcoming dispute, such as service of the claim, subpoena or written or oral notice. The receipt of a dismissal by an employee or other representative usually triggers preservation for companies. For reference, here is an example of a legal retention policy from the American Board of Pediatrics. The main objective of the legal retention policy is to ensure a consistent and defensible approach to the retention obligation.
And while this obligation may be known to legal departments and senior management, most employees, including potential custodians of relevant ISTs, are generally unaware of it. Therefore, another purpose of a litigation retention policy is to help employees understand the obligation to retain information and the potential consequences for the organization as a whole if this obligation is not met. You must ensure that your legal retention process and technology are able to record and report the following details for individual cases and custodians: Once a party reasonably expects litigation, they must follow a clear process for dealing with the legal lock: Any reminder to recipients who repeat that the block and its instructions are still in effect and that potentially relevant information does not are not should also be prosecuted. Tracking the legal hold process can be complicated when done manually, which is why today`s successful legal teams rely on cloud-based legal custody software to streamline the process. To consistently record and manage decisions, store and send predefined legal hold notifications, reminders, and updates, legal retention solutions are valuable tools that help legal teams deal with the situation. It`s tempting to think that such improvements are trivial, but smoothing out the process makes both the process itself and the results it produces more defensible. A solution that tracks legal hold notifications and bank confirmations from custodians helps legal teams stay on top of things and trust that nothing will be overlooked. Automating the sending of reminders and updates to custodians ensures that these steps are not missed or forgotten, and when tracking is enabled, you know immediately when a custodian no longer actively confirms the hold order. Clear, high-quality templates help custodians determine what is expected of them and act accordingly.
Having a reliable and defensible legal restraint process in place can save you hours of frustration and put you on the right track, not only for the initial issues, but for anything that may arise in the future. If data is lost, you should have hard evidence of preservation efforts. Setting up a legal lock is an essential first step, but you also want to show that the lock actually reached the relevant custodians (and more importantly, that they understood their obligations at that time). Always ask custodians to acknowledge receipt of the legal retention notice and continue it consistently until they do. If an organization fails to demonstrate a defensible process, it could face significant penalties and a significant legal disadvantage. When evaluating legal hold software, look for a solution that meets these requirements: an obvious but sometimes overlooked step. Make sure you don`t forget important details in your notification and include all relevant custodian banks. If possible, you should throw an extra pair of eyes on it before taking the plug.
The preservation of evidence can itself be initiated for an internal investigation, ordered by a court in the context of an ongoing dispute or on the basis of a complaint that may trigger a dispute. Regardless of the lock trigger, the type of data to be retained typically includes ESIs, as well as printed papers, logbooks, and reports. Legal suspensions or litigation holds are an important part of eDiscovery because they affect the entire organization and are much more common than other steps in the eDiscovery process, such as collecting or reviewing data. Therefore, lawyers must have a good understanding of the technological and legal requirements that must be met in order to comply with their retention obligations. Managing the litigation hold process is a crucial part of legal work, and compliance with related federal and state regulations is critical to maintaining a fair trial and avoiding potential penalties. But the process became more laborious than in the past, when legal teams simply had to keep printed papers, logbooks and reports. In today`s eDiscovery process, legal teams must also retain electronically stored information (ESI) such as emails, instant messages, spreadsheets, PowerPoint presentations, and audio and video (A/V) files. If litigants do not adapt their methods of issuing and managing litigation suspensions, they face legal consequences and adverse penalties, jeopardizing their ability to remain competitive. Any action taken in response to a legal retention obligation must be carefully documented so that the organization can later describe its actions to a court if necessary. The legal service should know who issued a freeze notice, when it was originally issued, what they said, who received it and whether they acknowledge receipt of it. The team should also monitor any changes to the suspension, such as new custodian banks or revised holding instructions. Look for a solution that integrates seamlessly with your eDiscovery process so that if a lockdown process turns into a full investigation or dispute, you can immediately turn your hold into a discovery case.
Certain events may trigger the obligation to retain evidence before litigation is filed. This was the case in Bagley v. Yale University et al., where the obligation arose when university employees exchanged emails indicating the plaintiff`s threat of legal action.
