Because of the continuing complexity of cases involving e-discovery, legal teams are required to work closely with colleagues throughout the organization. IT must be collaborated with in collecting data, and must interface with e-discovery software or service providers. Records Management, if such a department or individual exists, often holds the keys to big troves of potentially relevant data. And “line” employees, who can be potential witnesses and data custodians, must be contacted and relied upon to preserve any potentially relevant evidence.
This three-part series will help in-house counsel and other legal professionals to effectively work with IT professionals, records managers, and other employees.
Crunch Time: How to leverage technical experts and records managers to help enforce a litigation hold to preserve documents
The discovery process does not start with the collection of documents. Before collecting, all potentially relevant information must be preserved, which means that those who hold that data must be told to keep it and not change it. You may already have a strategy to properly and effectively collect documents with a technical expert, collection specialist, records manager (RM) and/or technical records manager (TRM). However, you will likely need the help of these resources when you disseminate a litigation hold informing the custodians or prospective witnesses of the data you need to preserve and possibly produce.
Disseminate the litigation hold
Once you know that litigation is going to ensue and discovery will commence, a litigation hold notice must be disseminated to all potential witnesses and any other necessary parties. A litigation hold notice (also known as a “legal hold”) notifies these “custodians” that they must suspend the normal disposition of records and preserve all evidence to avoid spoliation or exclusion. In doing so, identify specific individuals to whom the hold pertains. If possible, identify those individuals’ specific workstation(s) and the name of the system that individual works on. Many times each user’s system has a specific name assigned to it by IT; this information can allow IT to more easily identify the user.
Identify information to be retained for the relevant case. Be specific in order to avoid over-collecting. Be careful, however. If you are too specific, you may miss data you need, and you will likely have to go back to the relevant custodians. Also, be clear. Otherwise, custodians or witnesses tend to use their own judgment and will only save or turn over what “they think” is relevant.
Custodians are sometimes notified of the litigation hold via e-mail. If so, you must document this effort and obtain confirmation that the litigation hold was received by the party in possession of the data. Many times e-mails are lost in the shuffle. This is not acceptable for a litigation hold notice. You may want to send the hold both electronically and in writing to ensure receipt by the relevant party.
It is also a good idea to work with IT and RMs to furnish an external hard drive/other data storage and have them assist custodians in saving the relevant data for the hold. Ask questions of IT or RMs for any potential points of contact for questions and further guidance on litigation holds and other legal matters that may impact your ability to preserve the data such as the organization’s electronic or paper retention policy. There might be resources within the organization that you do not know about that can assist you in disseminating and enforcing the litigation hold.
Make sure all of your custodians understand why litigation holds matter. It is sometimes human nature to ignore the lit hold request or hide potentially damaging evidence; they must understand that it is not permissible to give in to this impulse. If the data is not preserved, then your organization could be subject to sanctions and civil or criminal penalties. Your organization’s case could be in jeopardy and an adverse inference could be drawn against its employees’ failure to comply with the lit hold. You could also be subject to ethnical sanctions as well if you are aware of the failure to preserve data or are aware of its purposeful destruction.
Guidelines and certifications for custodians
Given the importance of preserving the data, here are some additional requirements to integrate into your litigation hold that IT and RMs can help you enforce when coordinating with them.
Request that the recipient of the litigation hold submit a certification that they have read and understood the hold notice. Have the recipient state that they have conducted a thorough search for any documents that are potentially relevant to the lit hold for the matter and have attached a written description of any search efforts. For electronic data, you may have to work with the custodians, IT, and RMs to develop a consistent list of search terms. Otherwise, custodians may search for the data on their own and may not understand all of the options or implications of running the search terms. They may not think of all of the relevant terms, or they may use inconsistent terms.
Have the custodians certify if they have or have not located documents that are potentially relevant to the hold notice for the matter identified. Additionally, have them certify to agree to preserve these relevant documents and suspend destruction until the attorney responsible for the case communicates in writing that the hold for the specific matter has been lifted.
The IT and RM professionals should be advised to notify you of any anticipated technical refresh, defragmentation run, or other event that might move, alter, or destroy any of these documents, data, or files. If you have a good relationship with IT, they can coordinate with you on this effort. Many times the custodians may not know about these issues, and they may not even be aware of data retention policies.
If there is an auto-delete data retention policy that cannot be selectively suspended, make sure that the custodians know what it is so that they can preserve the data on some other electronic media whether it is hard drives, CDs/DVDs, or shared drive on your enterprise system. Many times organizations purge e-mails every few months to manage data sizes.
Have custodians agree to locate, notify, and work with the appropriate IT personnel or RM to insure all electronic documents are retained until counsel communicates that the lit hold for the specific matter has been lifted.
For any paper files or documents, have custodians agree to clearly mark the documents (boxes, files, cabinets, etc.) to indicate that the documents are subject to a litigation hold. Have them agree to further segregate or maintain and protect the documents to allow for their retrieval and easy access. An RM working within the organization can help isolate all of the paper materials, place labels on them for the hold, and list who the custodians of the documents are including any dates on the files that are relevant to the hold.
Try to determine if any custodians are planning on retiring or transferring from their current position. You will need to segregate these custodians and have IT preserve their data in the background as a backup measure if possible.
Remedying and avoiding the nightmare scenario
If custodians have already deleted files prior to the dissemination of your litigation hold notice — or even worse, after it was already disseminated — the data may still be able to be recovered, although at a much higher price. It may still be retrievable on the custodian’s local hard drive or possibly on the network drive if your organization has a data backup system. This may require a forensic data recovery, which can become very expensive. If you know there is data that was deleted that you know is relevant to the litigation, you may have no choice. The key is to try to plan in advance to prevent this scenario. Many times this is difficult because you may not be able to fully control the activities of all custodians, but IT and RMs can help. If you know that the organization does not have an enterprise-wide backup system, try to determine if they can implement one. Training on records retention policies and litigation holds by RMs can be helpful as well. When dealing with enough custodians, all kinds of scenarios can arise. People will make mistakes, miss the litigation hold in their e-mail box, or misunderstand it. It is up to you and your organization to mitigate the danger.
If you plan accordingly and build strong working relationships with your organization’s IT team and/or RM, especially in an instance where you have hundreds of custodians, they can help you plan and execute your hold and preserve the data required for any discovery and litigation that may ensue down the road. Even in the worst case scenario where a custodian “goes rogue” and creates their own search terms, deletes data, or completely ignores the hold, IT and RMs can help you identify these individuals, get them back on track, and possibly even recover data.
The purpose of this series has been to provide you with some insights on how to handle technical and managerial issues that may be outside of your comfort zone, especially in situations where you may have huge data sizes or many custodians of data. You may not have to deal with a case or project that would require so much planning and coordination on the technical and managerial fronts. However, if you do, you can collaborate throughout the organization to mitigate these issues as they arise in the e-discovery process.
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