The legal hold release process is just as important as the issuance.
While Engelbert Humperdinck may not be a modern-day Top Ten superstar, his chart-topping 60’s hit “Please Release Me” does come to mind when answering one of our “Top 10” most-asked Legal Hold questions: What should the legal hold release process include?
Let’s address the “how“ of the legal hold release process. Most legal hold software solutions, including BIA Legal Hold solutions, will have a legal hold release process to assist in notifying recipients that their legal hold obligations have ended. If a company is using an automated solution for litigation hold management, then chances are the “how” is already part of that solution.
If using a manual process to manage legal holds, then the same process used to initially notify recipients that their hold obligations have begun (for example, manually sending emails). The process is basically the same as the initial notice process, except that in most cases, there’s no need for the recipient (sometimes referred to as a custodian) to acknowledge the release notice.
One important note – you should be careful if custodians are on multiple legal holds, as releasing them from one hold generally has no impact on any other unrelated legal hold obligation which may still be in force. Indeed, especially if you have an active litigation portfolio, you may want to remind custodians in the Release Notice specifically and clearly that being released from one hold has no effect on any other active litigation hold.
Now, for the “when” question regarding the legal hold release process. In fact, the second most important question after “When should a company issue a hold?” is “When should a company release people?” What’s more, as part of the legal hold release process, it’ll probably be one of the most common questions heard from the custodians, legal, IT and others involved in the process.
3 Reasons to Release Custodians
While there may be other less common reasons, there are three primary reasons companies release a custodian from their Legal Hold obligations:
Legal Hold Release: Reason 1
First, and probably the most obvious reason, is when the matter has reached its final disposition. Whether it be due to a full and complete settlement, a regulatory hearing conclusion or exhausting of all appeals, the basic rules around determining when a particular matter has reached its ultimate conclusion are essentially the same rules that dictate when a given matter has reached the point where custodians can be released.
Legal Hold Release: Reason 2
The second, and most common reason, is when it has been determined that a particular individual isn’t actually relevant to a given matter (usually after a custodian questionnaire or interview process). In setting up a new legal hold, one of the best practices is to not fret too much on whether a given individual should be a custodian. If there’s any doubt, it’s best to err on the side of caution and be slightly over-inclusive. In short, while you never want to blanket your entire organization with every legal hold notice, it’s still better to err on the side of caution and includes someone you later decide need not be included, than to not include someone you later find out was a key custodian.
Legal Hold Release: Reason 3
The final, and most popular reason to release a custodian, is by agreement. In the end, and as Courts repeatedly have held, the parties can always agree to limits, scopes and other aspects of the entire discovery process. It’s not uncommon for the parties to agree on a custodian list and, at some point in the discovery process, even agree that others need not remain on legal hold.
Before we go, we briefly should address the related question: Why is issuing a Litigation Hold Release so important anyway? While that could be the topic of its own post, in short, you want to be able to allow your organization – both in terms of people and systems – to return to a normal operating state.
Informing custodians that they are no longer on a hold frees them from spending any time ensuring that data is being properly retained. Since legal holds can impact both old data and newly created data, ongoing obligations can have a real efficiency impact. Moreover, a legal hold requirement may include changing, modifying or suspending many normal business routines, from document retention policies and procedures to automatic system maintenance and backup routines.
So by properly maintaining and releasing custodians from their legal hold obligations when appropriate, a company is ensuring that the enterprise – both its people and its systems – can return to a normal, routine state.
To determine whether your other eDiscovery activities are up-to-par, read our article, How confident are you in your eDiscovery processes?