Legally compliant manual litigation holds without software are entirely doable; here’s how.
Manual litigation holds come up in discussion less and less these days, as automated litigation hold software continues to increase in variety, capability, and popularity. Organizations of any size or scope have a legal duty to preserve any data that is potentially relevant to a new, imminent, or anticipated legal matter. The first step in complying with that duty involves issuing a litigation hold notice (or legal hold notice) which mandates the preservation of data and electronically stored information (ESI) as well as other pertinent information that might live in the form of hard copy documents.
For companies facing frequent litigation, the reasons to enlist the help of software to navigate their litigation holds are obvious. But what if your organization is involved in only a handful of legal matters per year? What if you don’t have room in your budget to invest in a license for litigation hold software? Whether your organization deals with one, ten, or hundreds of legal matters each year, your legal duty to preserve data remains the same. The question then becomes: How can you successfully manage the litigation hold process manually, without automated software?
How to Manage Manual Litigation Holds, Without Specialized Software
- Identify the custodians. Which employees, vendors, or other parties (referred to as “custodians”) might have information that is relevant to the case? In addition to a litigation hold notice, you should also send these parties a custodian questionnaire (CQ) asking them not only where relevant data may reside, but also who else inside or outside the organization might have relevant information and what involvement they may have in the matter. When used properly, custodian questionnaires will greatly improve your custodian identification and fact-gathering processes. CQs can be sent along with the hold notice or down the road, before collecting the custodian’s relevant data. Hint: Using a CQ early in the process can also help identify your key custodians, track down what they may know, and determine who else to consider placing on the hold.
- Draft a litigation hold notification and send it to each custodian. The notification should address – in layman’s terms – the who, why, what, where, when and how.
- Who is subject to the litigation hold?
- What should be preserved?
- Why was the litigation hold issued?
- Where should it be preserved?
- When is the litigation hold effective?
- How should it be preserved?
Note: Always provide a knowledgeable contact person who can answer any questions the hold recipient might have regarding the hold and their obligations thereunder.
- Document the litigation hold process. Most organizations that issue litigation holds manually will use a spreadsheet with the custodians’ names and a column for when each notification was issued. Generally, when the notice is sent (usually via email), each custodian must acknowledge receipt and understanding of the notice and their obligations going forward. That acknowledgement is also tracked in the spreadsheet. Best practices require routine reminders to custodians (usually monthly or quarterly), which you should also track manually in the spreadsheet.
Here is a starter list of items about each custodian that we recommend tracking in your manual litigation hold spreadsheet:
- Matter name
- Hold name
- Date last issued
- Custodian first name
- Custodian last name
- Response date
- Email address
- Employee type
- Employee status
- Employee ID
- Supervisor name
- Supervisor email
- Release date
- Legal hold text
- Attachment name
All of that manual tracking can be tedious, but meticulous documentation is absolutely critical to prove that your litigation hold notice was defensibly and properly issued, acknowledged, and maintained, should opposing counsel challenge that process. Additionally, it is the best way to avoid one of the most common sources of sanctions in eDiscovery today—a spoliation claim.
- Maintain the hold. At a minimum, you should distribute reminder notices on a regular basis to ensure that custodians are continuing to preserve their data. In some cases, the obligations listed in the original litigation hold notice may change as the legal matter proceeds. For example, the date range for which the data must be preserved may be extended as claims are clarified during the discovery process. Such changes need to be communicated with custodians in a timely and systematic manner. Continue updating the spreadsheet – or whatever record-keeping system you decide to use – with copies of the notices you have sent as well as custodians’ receipt/confirmation of each. It’s also a good idea to share litigation hold information with IT staff so that they can properly preserve any departing employees’ data.
- Release the hold. When the legal matter has ended, you should notify all custodians that the hold has been released. Be sure to include specific instructions for how to defensibly delete any data that was previously under hold (if applicable) and subject to your standard business document retention schedules. All details of this entire process go – you guessed it – right in the tracking spreadsheet. The best practice for release notices is to advise those released from the specific hold that, if still subject to other holds, their obligations to preserve data for those holds remain in place. As part of the release notification, it is helpful to provide a list of other holds to which the custodian remains subject. Here again you can provide a name and contact information for someone a custodian can reach out to with questions or need for clarification.
Common Land Mines
- Missed custodians. Err on the side of casting your net too widely at first. It is better to be over-inclusive in your litigation hold notification recipients list than to risk missing custodians.
- Don’t “litigate” the matter in your litigation hold notice. The notice should be direct and concise with a straightforward reason for preserving the data/documents, e.g. “We’ve been served a complaint by XYZ Company regarding Product M and we need to preserve all documents from January 1, 2017 forward. Any questions, ask [contact name, phone & email address].”
- Make it crystal clear that all data is subject to preservation: email, text messages, cloud resources, social media, call recordings (COVID-19 video calls are prime candidates), internet connected devices, etc.
- Once again for the people in the back: Track all activity in your tracking document – hold issuance, acknowledgments, updates, reminders, releases, and other pertinent data points.
For organizations that issue only a couple of litigation holds every year or so, the burden of handling manual litigation holds isn’t so heavy. However, for companies sending out more than just a few legal hold notices a year, keeping track of all the moving parts manually becomes much more difficult and time-consuming, often requiring one or more employees to handle as a full-time job. The complications increase for companies with a large staff and for those that produce a lot of data. The more employees you have and the larger amounts of data you produce, the higher the likelihood of oversights and errors. To save time, we recommend that these organizations consider investing in software to automate their litigation hold process.
If you need some bullet points to help nudge the decision-makers in your company to consider an automated solution, look no further:
Benefits of Using Litigation Hold Software
- Automation: Sending manual litigation hold notices and reminders can be extremely time-consuming, even before tackling all of the follow-ups required to get each custodian’s acknowledgment of the obligations outlined in the notice. Legal hold software automates the entire process and requires only a little bit of setup on the back end.
- Collection: Depending on what software you use, it may also automatically, discreetly, and remotely collect data from custodians so that it can be preserved, archived, or promoted for filtering and review.
- Mass Communications: Rather than emailing individual custodians one by one, using litigation hold software enables you to easily contact all custodians at once.
- Tracking: Not only can you contact all custodians at once, but the software will also automatically track all the key data points and keep track of who responded and who didn’t, in real time. This keeps your records in order, and it provides defensibility that can be difficult to guarantee with manual litigation holds.
- Reporting: Reporting capabilities in legal hold software are robust. With the click of a button, you can generate reports for one or all company matters.
- Multi-use: Companies can leverage legal hold software for a number of other similar tasks too. At BIA, we have clients who use our legal hold software for HR and regulatory compliance purposes, sending things like training notifications, confidentiality orders and corporate policy changes, all fully tracked and reportable.
- Defensibility: The key to assuring that you’ve done what should have been done is to have a protocol in place that funnels to you all events, correspondence, and activities that need to be examined for “anticipation that litigation is foreseeable”. When that test comes back affirmative, and each step of your process regarding creation, issuance, and maintenance of the litigation hold is fully documented in written form, then you will have a high degree of comfort knowing that what you’ve done is legally correct, ethically sound, and defensible in court.
BIA has been helping clients manage manual litigation holds for almost twenty years. Using the knowledge, experience, and client feedback from those years, we also built our own legal hold software to help our clients automate, organize, and document these processes. In short, we are experts in both. Whether you’re looking for guidance on managing manual litigation holds, or you’re interested in learning more about software that automates the legal hold process, we’re here and you’ve got our ear, so reach out today.