[author: Lauren Burnside]

Dive into the do’s and don’ts of data preservation, custodianship, legal hold release expectations, and more.

It is the season of giving thanks, and we’d be remiss if we didn’t acknowledge the tips and tricks that alleviate the pressure of creating, communicating, and managing legal holds. An effective hold process is a bit like insurance — always worth the investment (and not having it could be costly).

In this blog, we highlight four indispensable legal hold tips that resonate in the legal realm. From procedural nuances to technological advancements, these peer-vetted strategies contribute to the seamless execution of legal holds, an advantage that is becoming increasingly important in our shifting legal and regulatory landscape.

Establish defensible and repeatable data preservation practices

Having a defensible and repeatable practice improves compliance and minimizes risks associated with the legal hold process – saving your business time and money.

Do:

• Work closely with legal counsel to establish defensible and repeatable best practices for all.
• Monitor the progress of data collection and custodians on active holds, especially those who leave the company.
• Continuously remind custodians of their duty to preserve information and escalate non-compliance.
• Keep a record of preserved data, involving the right stakeholders, and maintaining easy access to preserved data.

Don’t: Draft legal holds filled with jargon, rely on manual tracking, or forget about third parties.

Be proactive in communicating legal hold updates with your custodians

Your custodians will be anyone possessing relevant evidence or data to the dispute, audit, or case in question — and it’s your responsibility to inform them of their preservation obligations in a timely, straightforward manner.

Do:

• Distinguish between active custodians and silent custodians, keeping an updated list and sharing it with the IT team.
• Develop a strategy to identify all relevant information sources and applications.
• Clearly communicate data management responsibilities to custodians.
• Consider templatizing common notices to save time.

Don’t: Rely on manual processes to identify custodians and track updates.

Investing in an automated legal hold solution has the ability to transform the legal hold process while improving the custodian experience. A win-win for both the custodian and the company, increasing your ROI.

Keep custodians informed

To get the best results and ensure compliance throughout the organization, it is important to keep custodians informed, as they are the epicenter of the legal hold process. However, across a growing or distributed team, it can be challenging to stay on top of this manually with so many pieces on the go.

Do:

• Keep custodians informed throughout the legal hold process for better compliance.
• Use automated reminders and escalations to expedite the instruction and attestation process.
• Adjust based on changes or scope, and monitor employee changes during the hold period.
• Integrate with HR and enterprise databases for timely notifications of employee departures.

Don’t: Rely solely on manual approaches for tracking custodianship, as it may lead to non-compliance, evidence spoliation, and lack of visibility.

Set clear legal hold release expectations

When litigation is wrapped up, it is important to take the steps to release the hold by communicating to custodians that they can purge their data. Before following through with the release, it is important to ensure that important information is shared with all parties in its entirety.

Do:

• Establish a clear process for releasing holds and communicate it to custodians.
• Specify the triggers for legal hold release, such as expiration of the statute of limitations or dismissal of litigation.
• Outline the purpose of releasing the hold and remind custodians of superseding retention schedules.
• Review open holds regularly and understand triggers for their release.

Don’t: Forget to communicate the release of legal holds in its entirety to all parties involved.

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