Legal Holds and Trigger Events

Preservation Extends To ESI In Your Possession, Custody or Control

"Do I need to preserve records stored with a third party?"  This question is one of the most common legal hold questions.  It is really about the scope of the hold and how far a party's duty to preserve extends.  The short answer is that the duty to preserve extends to ESI and other documents in a party's "possession, custody or control."  In other words, if you were forced to produce the records or face severe sanctions, could you get them?  The legal analysis is a little more detailed, but comes down to a case-by-case examination of whether the preserving party had control.  Absent control, there is no duty to preserve.  But what exactly is control?  We came across a good artlcle at InsideCounsel Magazine, that discusses this very issue.  It appeared June 22, 2009 and is titled "Third Party Thinking The Duty to Preserve, Collect, and Procuce Electronically Stored Information Held by Third Parties ."

All Lawyers Must Be Able to Fashion a Defensible Legal Hold

 
In the May issue of Law Technology News e-discovery expert, Craig Ball, warns lawyers against using boiler plate legal hold forms.  He advocates that fashioning timely, case specific legal holds is an essential skill that all lawyers need to master.  To read Craig's sage advice, click here.