The legal hold requirement is vastly misunderstood in my opinion. I have run into many corporate counsels that have the opinion;”I just send and email out to anyone in my company that could have responsive ESI asking them to be sure not to delete any data about the following subjects”. Then, if the delete something they shouldn’t have, it’s their neck, not mine or the company’s.
There are so many things wrong with this statement it could make for a semester long college class to fully discuss it. First it ignores the concept of early case assessment (ECA). Many attorneys are of the opinion that having access to all the data, no matter if its “good” or “bad” data is a good thing because having all the data lets them understand how the case should be handled. If you have the attitude of let the employee worry about it and if they delete something responsive, it’s not my problem assumes the organization is doing little or no early case assessment.
Second, that same attitude implies a lackadaisical stance toward the collect of responsive ESI. The responsibility of the party being discovered includes turning over ALL responsive ESI. If an employee is inadvertently (or on purpose) deleting ESI, then you are not meeting your responsibility to the court. Also, Murphy’s Law states that sometime during the case, the opposing counsel will produce the deleted file and ask the court why you said it didn’t exist.
Third and most obvious it the fact that the party in litigation has the direct responsibility to immediately protect all responsive ESI on a legal hold as soon as the party could reasonably anticipate litigation. Many cases are lost because the litigation hold was not properly processed.
Another related topic is custodial self discovery. Who would be surprised in learning an employee involved in some wrong doing would ignore a litigation gold request and delete as much responsive ESI as possible? That highlights the question of the defensibility of custodial self discovery. An interesting case was discussed in the blog titled: Custodial Self-Discovery and Common Sense.
So what’s the best way to ensure litigation holds are timely and complete? A hosted or on-premise ESI archive like the NearPoint ESI archive can capture, index, manage and make searchable all potentially responsive ESI from the most requested content sources; Exchange email systems, SharePoint systems and Windows file systems. Because of this capability, when a litigation hold needs to be placed, the corporate attorney can access the centrally managed ESI archive and search for persons, words, phrases, date ranges etc and any ESI returned can immediately be secured on a litigation hold. Instead of relying on employees to understand and act on a litigation hold email, it can be done centrally in a matter of minutes. This capability lowers your risk of spoliation as well.