Legal Holds and Trigger Events

Litigation Hold Notice Example

We recently stumbled across a comprehensive preservation memo issued by the City of Phoenix, that has somehow found its way onto the internet.  The memo is a good example of the type of legal hold notice required pursuant to current best practices for implementing legal holds.  It identifies the purpose of the hold, the scope of the hold and contains a custodian list.  It stresses the importance of preserving records, including e-mail.  The memorandum is available here: http://tiny.cc/LP0tI 

Steps to Follow in Building a Defensible Legal Hold Strategy

A recent post by DCIG blog by the same title discusses e-discovery and the role of a defensible legal hold business process.  The blog post gives a good overview of the many dangers associated with failing to properly implement legal holds as chronicled at www.legalholds.typepad.com.  A particularly useful list of tips is reproduced below:

With these case lessons learned it is necessary to follow these steps when faced with a legal hold scenario:

• Direct communication with every source of relevant information is crucial involving all necessary key personnel in the litigation.  This should minimize the chances of documents materializing at a later date.

• Executive management must explain employee's responsibilities, convey specifics on information required, and ensure employees understand their role in the litigation.

• Companies should put in measures to monitor and follow-up with key personnel ensuring compliance with legal hold and preservation of ESI.

• Ensure processes are in place that shows a company acted in "good faith" in providing all relevant documents. Claiming ignorance about missing documents is not an acceptable defense.  

To see the original article click here: http://tiny.cc/aDW0g

A Glimpse Into a Corporate Legal Hold Policy

We stumbled across an older blog post that gives a glimpse into one company's comprehensive legal hold policy.  The Law Department Management Blog reported:

Guidelines for hold procedures make sense. One I know about has 7-8 pages with attachments. The attachments describe a litigation support team, give a sample hold order with annotations, provide instructions to law firms of what to do and not to do with documents, guide document custodians, and explain in lay terms the function and importance of a litigation hold order.

This description is accurate.  Proactive organizations should have a detailed legal hold policy and procedures in place.  While this description is typical, guidance for developing such a policy is often difficult to find.  Certainly our blog is a good start.  See http://legalholds.typepad.com/legalholds/2009/06/model-litigation-hold-policy-and-procedures.html.

To see the original post from the Law Department Management Blog click here: http://tiny.cc/nObhf.

Model Litigation Hold Policy and Procedures - AHIMA Model E-Discovery Policies

The American Health Information Management Association (AHIMA) has a model litigation hold policy posted on its website.  The policy and procedures are based on the article "AHIMA Model E-Discovery Policies: Preservation and Legal Hold for Health Information and Records." Journal of AHIMA 79, no.2 (February 2008).

It is a detailed example of a preservation plan for medical organizations faced with anticipated litigation. It is a very good example for anyone working at developing a legal hold policy and proedures for most organizations.

The model policy defines the roles of a Legal Hold Team, a Litigation Response Team, Data Owners (custodians), IT and Compliance.  The model policy further defines the responsibilities of the teams and individuals throughout the entire legal hold business process.

The procedures follow the steps necessary to implement legal holds in an organization as discussed at www.legalholds.typepad.com. The steps outlined in the procedures are:

• Trigger Events and Application of a Legal Hold ("The team will identify the trigger events that may indicate the potential threat of litigation")

• Obligation to Identify, Locate, and Maintain Relevant Information ("Once litigation or potential litigation is identified, the response team must engage appropriate individuals to assist in identifying, locating, and maintaining relevant information")

• Preservation/ Legal Hold Notice ("Once relevant information is identified provide a written notice of a legal hold to the department/data owner and identify the relevant information") ("Review the legal hold notices in effect. Periodically reissue or amend as needed")

• Monitoring Legal Holds ("The team will implement a process to monitor legal holds to track compliance")

• Release of a Legal Hold ("Once it is determined that the legal hold is no longer necessary, the litigation response team will release the legal hold")

For a copy of the model policy and procedures click here or the AHIMA banner above: http://tiny.cc/AHIMA_Model_Litigation_Hold_Policy