The American judicial system is grounded on the belief that adverse parties should share documents and other information prior to trial. In support of that proposition, each has a duty to identify, locate and preserve information and other evidence that is relevant to a litigation. The purpose is to avoid the intentional or inadvertent destruction (“spoliation”) of relevant evidence that might be used as part of the legal proceeding, such as at trial.

This duty to preserve can arise even before suit is filed or the information is otherwise requested. In 2003, Judge Shira Scheindlin set out the rule for what has become known as a litigation or legal hold.

“Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a 'litigation hold.'”

Zubulake v. UBS Warburg (“Zubulake IV”), 220 F.R.D. 212 (S.D.N.Y. 2003).

Though 15 years have passed, many legal teams still struggle to efficiently and cost-effectively execute legal holds, using spreadsheets, emails and other manual methods that can lead to mistakes, lost evidence and charges of spoliation.

This three-part series will provide a primer on the duties surrounding legal holds and preservation and offer tips on how to fulfill your responsibilities as a legal hold administrator. It is written for legal and IT professionals who want to learn best practices for effectively managing and implementing legal holds.

This first article focuses on key steps to consider in implementing the hold.

Seven Steps for Implementing a Legal Hold

Legal holds arise from the duty to preserve information for pending or reasonably anticipated litigation. Those covered by the hold, as well as the organization itself, must stop deleting potentially relevant data while the hold is in place.

Here are the key steps to consider:

1. Identify key custodians and data stewards.

The first step in a legal hold is to identify key custodians and other data stewards (IT, records managers or division leaders) who may have knowledge or documents relating to the anticipated litigation. This often turns on your understanding of the issues underlying the anticipated litigation. Courts recognize that your knowledge of the claims and defenses likely to be raised is far from perfect, and will be developed over time as the litigation proceeds.

2. Issue a written hold notice.

Once you have identified key custodians and data stewards, they each must then be notified and directed to stop deleting documents that relate to the issues in the hold. For individual custodians, this would be a notice to refrain from deleting email or other documents in their possession. For IT personnel, the message would be to suspend any routine document retention/destruction policy that might impact data subject to the hold.

The hold notice can be delivered in several forms, including email, written hard copy or, in some cases, verbal. The key is that the notice should be in a form which is appropriate to the circumstances. The safest course is to put it in writing. This allows you to transmit clear instructions and provides a record of the notice.

3. Provide basic information about the hold in your notice.

Although there is no hard and fast rule governing hold notices, courts and commentators have suggested that, at a minimum, the notice should:

• Describe the matter at issue,
• Provide specific examples of the types of information that might be relevant,
• Identify potential sources of information,
• Inform recipients of their legal obligations to preserve information, and
• Include reference to the potential consequences to the individual and the organization of noncompliance.
• Do all of this in clear, plain language.

The notice should also inform recipients whom they should contact if they have questions or need additional information.

4. Secure an acknowledgement of the hold.

It is smart practice, though not absolutely required, to obtain acknowledgements and agreement from key custodians to honor the hold notice. This helps ensure and document the custodians are aware of their preservation duties and will help demonstrate a good faith hold process.

5. Send periodic reminders about the hold.

Holds last as long as the litigation, and litigation often takes years to resolve. While there is no set requirement, quarterly reminders about the nature and scope of the hold will ensure the custodians and IT department know that the hold is still in force.

6. Communicate the hold to IT.

As part of the early hold management process, communicate with relevant IT staff to suspend routine document retention/destruction policies that might affect data subject the hold. This will help ensure that data on hold is not lost as a result of routine document deletion.

7. Document the process.

In case questions are raised at a later time, document each step in the hold process, starting with your understanding of the claim, how employees were identified for the hold, who acknowledged the hold, and other communications and actions that took place and when.

Documenting the process should include: date, nature of claim, key custodians, scope of hold and communications involving the hold.

In addition, you may want to document the process of how a specific legal hold was implemented, including:

• Description of the collection protocol, persons contacted, and the date information was collected;
• Notes (at least as to procedural matters) from any interviews conducted with employees to determine additional sources of information; and
• Master list of custodians, data stewards, and systems involved in the preservation effort.

Don't rely on your memory or those of custodians when questions arise years later—memories are often dim and wrong. Employees may have departed and not interested in helping document your steps.

In sum, if you fail to document your hold efforts you may be setting yourself and organization up for sanctions if data is lost and cannot be restored by other means.

In the next two parts of this series, we will focus on when the legal hold duty arises, the scope of the preservation required to meet a legal hold obligation and using technology to manage legal holds and collection.

John Tredennick is the founder and chairman of Catalyst, which develops and hosts powerful technology for large-scale discovery and regulatory compliance for some of the largest companies in the world.