What is a Legal Hold?

Discover what a legal hold is, its critical role in litigation, and best practices for implementing a successful legal preservation strategy.

Legal holds, also known as litigation holds, are a crucial aspect of the litigation process, requiring entities to preserve all forms of relevant information when litigation is reasonably anticipated. They ensure that Electronically Stored Information (ESI) and other relevant documents are protected against alteration or destruction, potentially affecting ongoing or anticipated litigation, investigations, or audits.

The Essence of Legal Holds

Legal holds are issued to prevent spoliation, the destruction or alteration of evidence, which can have serious legal repercussions. They apply not only to documents and emails but to all forms of ESI, including databases, social media, voicemail, and more.

The Legal Hold Process

Identification of Information to be Preserved

The process begins with determining the scope of information that must be preserved. This includes identifying all relevant ESI, documents, and other data types that could be pertinent to potential litigation.

Identification of Custodians

Once the relevant information has been identified, the next step is to identify the custodians of this information. Custodians are individuals who control or have access to the identified information and may include employees, contractors, or third-party service providers.

Issuance of a Legal Hold Notice

A legal hold notice is issued after identifying the necessary information and custodians. This notice informs custodians of their obligation to preserve identified information. It outlines the nature of the litigation or investigation, the scope of data to be kept, and the expected hold duration.

Reminder Notices

Periodic reminder notices are crucial to maintaining compliance and reinforcing the importance of the legal hold. These reminders update custodians on any changes, provide additional guidance, and prompt any required actions to ensure the ongoing preservation of information.

Legal Hold Release

The legal hold remains in effect until the litigation or investigation concludes or it is determined that preserving the information is no longer necessary. A formal release notice is issued, indicating that custodians can return to their standard document management and deletion policies.

Best Practices

  • Early and Clear Communication: The initial legal hold notice should be clear about the scope and nature of the information to be preserved, with periodic reminders sent.
  • Use of Technology: Leveraging legal hold software can streamline the process, ensuring notices are received and acknowledged while tracking compliance.
  • Documentation: Maintaining detailed records of the legal hold process, including issuance, acknowledgments, actions taken to preserve data, and the eventual release of the hold, is crucial for defending the organization's efforts if challenged in court.
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Understanding and correctly implementing legal holds are fundamental to the integrity of the litigation process. Organizations must proactively establish comprehensive legal hold policies and procedures to ensure full compliance with legal obligations and protect themselves from potential legal risks associated with the spoliation of evidence.

It's worth noting that while legal hold procedures are an essential component of data governance policies, they are just one piece of a larger puzzle. To ensure comprehensive compliance with legal obligations and fortify defenses against potential legal risks, proactive organizations should consider establishing robust data governance policies encompassing all data management and security aspects. By doing so, entities can maintain the integrity of the litigation process and minimize legal risks.

Editorial Photo by Torsten Dettlaff on Pexels

Cover Photo by Markus Winkler on Unsplash

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