Four Steps to a More Defensible Preservation and Legal Hold Process

To me, litigation holds in electronic discovery are like Federal sentencing. Most Federal criminal cases end in a plea agreement, so very few are ever tried in front of a jury, but sentencing must occur in 100% of the cases. Preservation is very similar – although you are likely to collect and produce in only a subset of cases, you must preserve in 100% of the cases. So, just as sentencing law is extremely important to the Federal criminal bar, preservation is one of the most important phases of e-discovery to corporate or litigation counsel. Naturally, I am surprised when I talk to corporate law departments that do not have a documented, repeatable process for legal holds that also includes standard procedures for IT. Simply emailing a hold notice to a custodian and recording the hold on a spreadsheet is not enough given Judge Shira Sheindlin’s recent opinion in Pension Committee v. Banc of America Securities.

So, what is a defensible litigation hold strategy, and how do you get it done? It is important to remember that the ultimate goal is preservation of any and all evidence that may be relevant to the matter at hand. There are no hard and fast rules or checklists – only opinions from the bench of what is not enough. The keys to defensibility are consistency, standardization, documentation, and diligence. The place to start is with standardized policies and procedures as well as a person (or a portion of a resource) designated within the enterprise as the single point of contact for all issues related to preservation of evidence (read: project management). Technology can help, but a great preservation strategy can be developed without an expensive or vast technology investment. So, how do you get this done? Here are four steps you should take now:

I. Define the Process (You cannot execute a plan that does not exist):

The first step to creating a great litigation hold strategy is defining a process or set of procedures that can be followed repeatedly. This process could include setting up tiers for ESI sources, with tier one sources always being preserved (these might include frequently requested sources like email, file servers, and perhaps computers of key custodians), tier two sources being preserved on a case by case basis (including sources that are more industry-specific to the enterprise and therefore not always relevant in routine employment litigation or contract disputes), and finally tier three sources which include everything else. By tiering ESI sources, the enterprise can focus on developing detailed preservation protocols for the tier one and tier two sources while developing a less detailed protocol for tier three sources which would include simply naming IT subject matter experts who would be consulted in the event that those sources were ever subject to preservation requirements. This approach would allow the enterprise to prioritize data mapping and cataloging efforts on the tier one and tier two sources first. Data mapping can be an enormous undertaking, so the enterprise might do well to know as much as it can about the email system rather than spending critical time focusing on ESI that may never be subject to any preservation requirement.

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Source: eDiscovery 2.0
By: Brandon D'Agostino