Since legal retention itself is not a legal requirement, legal retention notices also have no mandatory content as long as the purpose is achieved. Clear and concise communication with trustees is important to ensure that all recipients understand what is required of them, what data they need to keep, and how to contact the legal team if they have questions about the notification or their role. When it comes to specifying what data to keep, it`s usually a good idea to include date ranges, names, and key terms associated with the case. Also, make sure custodians understand what types of data they need to keep. Legal retention notifications aren`t just about emails, so be clear (and, if possible, specific) about the types of data you want to keep. The philosophy behind a legal prohibition is to prevent the “looting” of evidence, including the destruction of physical evidence, alteration of digital records, or other alterations that could harm the defense. In-house lawyers often generate a legal lock to keep important information at hand. Having a reliable and defensible legal restraint process in place can save you hours of frustration and put you on the right track, not only for the initial issues, but for anything that may arise in the future. Legal holds can last for weeks, months, or even years. In general, the Legal Department also sends regular reminders of any legal freeze to the custodian banks concerned. The scope of the statutory retention obligation may also change over time; Updated guidance should outline this revised scope so that custodians know what information needs to be retained. Since the organization resolves all problems and is no longer subject to a retention obligation, the lock should be lifted (disclosed) so that information that is no longer needed is not retained. Legal suspension, or litigation hold, is the practice of ensuring that evidence is retained in anticipation of and during a regulatory or legal challenge.
In practice, legal holds are notifications sent by an organization`s legal team to employees or other data owners (called “custodians”) that instruct employees not to remove any information relevant to a court case. The aim is to secure all possible evidence, both in the form of electronically stored information (ESI) and in the form of physical documents. In the context of eDiscovery, the focus is on ESI. The landmark decision for lawful detention was Zubulake v. UBS Warburg, which was heard between 2003 and 2005 in the United States District Court for the Southern District of New York, where Judge Shira Scheindlin rendered five landmark judgments. Between judgments, the defendant, UBS Warburg, deleted database backups containing information needed as evidence in accordance with its usual data retention protocols. In dealing with this situation, Judge Scheindlin found that the data in question had been stolen and that UBS Warburg had acted intentionally, and therefore ordered an adverse jury inference order against UBS Warburg. Looting is the loss or destruction of potentially relevant information that should have been retained for a civil trial. According to the Federal Rules of Civil Procedure (FRCP), Rule 37 states that looting must be subject to the following conditions: A statutory retention obligation applies to both paper copies of documents and electronically stored information (ESI). Hard copies may include minutes, notes, forms, newsletters, photos, appointment books, printed emails and any other type of physical document.
ESI may contain all relevant electronic data, regardless of its format or storage. In a world of automatic deletion, timing is paramount, and if you don`t issue a legal lock in a timely manner, there`s a risk of penalties. Combined with the use of a reliable eDiscovery software solution, adherence to some proven best practices helps legal counsel manage disputes. Once the legal case is over, you must inform the custodians that their retention obligation has ended. A rigorous release process is important to ensure that no guard is released from their obligations when they should not, and that no guard is left waiting forever. Part of a successful legal retention process is to conduct thorough but effective interviews with relevant custodians who may or may not already have conservation experience. Legal teams should use these interviews to determine the scope of the prohibition, including all relevant facts and circumstances. However, it is unreasonable and inefficient to expect each lawyer to set up an interview process and develop questions for each director. It can also lead to arbitrary results that negatively impact conservation efforts. In the context of legal stays, your primary goal should be to create an arguable process, which means that your appeal, judge, jury or regulator will deem it appropriate and thorough enough. While perfection is not required, your actions should be appropriate given the information available at the time of action. Finally, it is also important to document when the lock was released and why (i.e.
what was the event that rendered the retention unnecessary?). Here are some important steps that need to be taken while legal retention is still active: Recent amendments to the U.S. Federal Rules of Civil Procedure (FRCP) address the discovery of electronically stored information (ESI) (also known as e-discovery) and extend the use of “legal retention” beyond the retention of paper documents.  The amendments were drafted in anticipation of legal arguments and tactics related to the creation of ISAs, such as the cost and difficulty of creating such ISAs and allegations that such ISAs were missing, deleted or otherwise inaccessible when in fact they were not. These changes came into effect on September 1. December 2006 and require organizations to retain all electronic records until a legal matter is formally resolved, even if an organization reasonably anticipates litigation. Legal holds are a crucial first step in the preservation process required by the Federal Rules of Civil Procedure and all equivalent state regulations. The absence of a legal ban can lead to sanctions and even the loss of a case. A litigation hold, sometimes called a legal suspension, is the process by which companies ask their employees to retain certain data for potential litigation. Neither an internal employee nor any other data subject (both called custodians) can delete or destroy data – whether stored electronically or on paper – without risk of legal consequences for the company. Therefore, it is absolutely essential for companies to implement a legal blocking process that is defensible, repeatable and effective.
When evaluating legal hold software, look for a solution that meets these requirements: Ultimately, the organization must ensure that legal retention is managed by the person or department that, given the nature of the organization, is best equipped to manage the process defensibly. This person or service should ensure that it follows a consistent process for dealing with legal retention so as not to risk data theft and non-compliance. The most critical step in the legal retention process is determining when the obligation to retain information begins. As Zubulake and many other cases have noted, a legal prohibition is triggered when litigation is “reasonably expected.” But what does “reasonably expected” really mean? While it is good practice to have email templates and a streamlined process for issuing a legal hold as efficiently as possible, a notice of legal hold should be a thoughtful document tailored to the needs of each case. Download a printable version of the Legal Best Practices Checklist here. The process of issuing and managing legal holds has become more complex with the development of eDiscovery, which goes far beyond the traditional paper documents of the past and includes ESI. With so much at stake to get it right, many companies have chosen to use process assurance software that makes process management more effective and efficient. This is especially true for multinational or geographically dispersed companies. As with the previous point, specially designed tools can certainly help here, but there`s no getting around the fact that keeping active reserves intact is a tough challenge when guards are on the go.
Litigation is expensive. Your legal hold software shouldn`t be. There is a lot of confusion about where the “reasonable anticipation of litigation” really begins. If you wait until the dispute actually begins before sending a notice to the parties involved, you risk non-compliance and loss of evidence. Instead, implement a clear standard practice to determine what triggers retention and define that event as a common protocol. If you have this explicit and logical guideline, you can also prove to the courts that you may have chosen a sound and thoughtful process. The legal retention notice is the notice sent to all custodians informing them that they are pending and indicating what information should be retained. This is an important part of the legal withholding process, which we will discuss in more detail later.