If you are looking for a concise discussion of legal hold best practices, the International Legal Technology Association's white paper Litigation Support: Document Forensics and Legal Holds contains a chapter devoted to Best Practices for Legal Hold Processes, written by Jeffery J. Beard, a lawyer/consultant at Daticon EED.
The excerpt of ILTA's white paper contains a discussion of recent cases and attempts to answer some basic questions about the legal hold process such as:
When is our legal obligation to preserve information triggered?
- Where is all of our data relating to this matter?
- How should we notify people of the need to preserve their information?
- Who needs to be notified?
- How much or how little information do we need to preserve?
- How can we best preserve and collect the data to meet our legal obligation? When should we rely upon custodian self-selection of data to preserve, and
- when is it more appropriate to follow a different procedure?When can we dispose of the information preserved subject to the legal hold?
The paper goes on to discuss areas such as Planning, Timeliness and Prioritization, Use the Meet and Confer Wisely, Communication, Documentation and Audit Trail, Accountability, Consistency and Repeatability, Identification (of data sources), Tranparency, Information Lifecycle Managment as well as Supporting Technology and Automation.
The paper ends with the following
Ten Legal Hold Best Practice Tips:
1. Take the steps to identify in advance where potentially relevant data is stored in active systems, backups, archival systems and other locations, such as portable devices and third-party hosted systems.
2. Put in place methods to identify, as early as possible, those who should be contacted for the timely preservation of data potentially related to the matter at hand (individual employee/custodians, enterprise and business unit data custodians, IT, third parties and collection service providers).
3. Confer with outside counsel and service providers early in the process and throughout to set clear goals and expectations to reduce risk.
4. Prioritize your hold efforts to address relevant evidence most at risk for spoliation if quick action is not taken to preserve it.
5. Develop written hold notice templates as appropriate, and retain copies of sent notices. They may be needed when your legal hold process is challenged.
6. Identify which temporal ranges (date ranges) will be needed for the legal hold, including ongoing preservation requirements.
7. Develop exit checklists and processes for reviewing departing employees’ legal hold obligations. These should identify and inventory their data sources, such as laptop hard drives, portable storage devices and smartphones, and relate both the departing custodians’ name and their data to existing hold matters. In addition, identify their successor data owners. Coordinate with HR as appropriate.
8. Incorporate personal follow-ups with individual and enterprise data custodians as part of your legal hold process. This is often a critical and effective step to learn more about the data, nature and merits of the case. Document and track each follow-up, keeping in mind the need to preserve privilege.
9. Differentiate between those matters where custodial self-selection is advisable and those that are not (e.g., fraud, employment, and various types of investigations). Plan for implementing forensic and other collection methods to reduce the risk of spoliation and foul play in particularly sensitive matters.
10. Manage your data before it manages you and your budget.
For a copy of the the entire white paper click on the image:
For a copy of the excerpt on legal holds only click here: http://www.lawtechguru.com/files/ILTA-Legal_Hold_Best_Practices-Jeff_Beard.pdf