Legal hold

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Legal Hold is a process by which an organization must preserve and prepare all forms of electronic communication when litigation is anticipated or confirmed. A major factor driving the need for a complete and highly capable Legal Hold (LH) solution was a result of the substantive changes to the Federal Rules of Civil Procedures (FRCP)(http://www.law.cornell.edu/rules/frcp/). FRCP addresses the discovery of electronically stored information (ESI) (aka e-discovery) including electronic communication (e-mail and so on). The amendments were precipitated by the persistent legal arguments and tactics related to the production of ESI, such as the cost and difficulty of producing such ESI and claims that such ESI was missing, deleted, or otherwise inaccessible when it really wasn’t the case. These changes took effect December 1, 2006 and require organizations to hold all electronic records until each legal matter is formally settled, even if an organization only reasonably anticipates litigation. FRCP also accelerates several timelines that have an enormous impact on e-discovery requirements that can only be addressed with technology due to the volumes and complexities involved.

There are three main requirements that comprise a Legal Hold process: a. Hold Notification: An organization, once the parameters of a Legal Hold are established, has a duty to preserve relevant documents as well as the responsibility of informing Custodians of the respective Custodian’s duty to likewise preserve relevant documents, this traditionally cumbersome process may be automated with workflow to ensure all custodians receive a formal notice and agree to it’s terms. Recommended approach to satisfy this requirement: This notification and subsequent related reminders should be created and distributed to specific Custodians and should require action of the Custodian right at the Custodian’s desktop / laptop to confirm receipt of such notification. This is far superior to the traditional use of read receipts reconciliation and follow-up because it allows for an unambiguous Custodian response and provide real-time tracking and reporting on Custodian responses. Further, automatic logging of all related audit trail information related to the LH notification process is also highly recommended. b. Segregated repository for electronically stored information (ESI): The process of identifying and eliminating non-relevant documents while identifying and preserving the needed documents out of a set of potentially relevant documents is “culling”. The relevant messages to the case are identified and preserved in a physical repository of relevant or potentially relevant documents subject to Legal Hold. Recommended method to satisfy this requirement: The solution must make use of a highly accurate policy-based approach that enables archived and current electronic communications – including e-mail, instant messages, web transactions and communications sent from handheld devices – to be categorized and tagged according to their relevance to specific corporate policy. Due to the substantial risks associated with deleting, losing or not having access to such data, this should be a segregated repository to better deal with the unique retention requirements and access needs of this subset of an organization’s stored documents. c. Case discussion prevention: Once an organization is served with a litigation notice, all future electronic communication (in addition to previously stored communication in the archive) are also subject to legal hold.

Recommended method to satisfy this requirement: In order to avoid additional exposure, all electronic communication that are created by custodians should be analyzed before they are sent. The solution should use sophisticated matching techniques to determine whether a message includes case-relevant information, either in its content or its context. Case-relevant messages should be blocked before they are sent, and further action – such as forwarding the message to legal counsel for review – should be automatically taken depending on the customer’s individual requirements.