Mimosa NearPoint: Electronic Discovery for LITIGATION
Best Practices for Litigation Hold
Assuming an email message alone to the employees is not the best way to handle a litigation hold request, let's look at a detailed process flow based on current best practices.
You should ask yourself, where are the tasks are in the process that can cause the company additional legal risk? And what can I do to eliminate or at least reduce the risk to acceptable levels?
In the process flow, there are four specific areas of responsibility; the Internal Corporate Counsel, the legal department Paralegal or Litigation Specialist, the IT department and the employee.
The Internal Corporate Counsel is usually the first “person of authority” to be made aware of anticipated or pending litigation.
The company Paralegals, depending on the company's infrastructure, will be the person that actually performs and manages most of the process steps.
The IT department will have the responsibility of ensuring specific systems including backup tapes, are identified and protected until the Internal Counsel decides they are no longer required.
The Employee's main job in the litigation hold process is to quickly acknowledge instructions from the legal department and to stop deletion of email content unless approved in writing by the legal department.
By adopting and enforcing a written set of litigation hold procedures, you send a strong message to the trial Judge that your company takes litigation holds seriously, even when inadvertent deletions occur. As a side note, before litigation has started, it is a best practice to develop a corporate-wide records retention policy to help enable the retention process. Also, the Internal Counsel and Litigation Specialists should meet with IT on an annual basis to become familiar with the company's IT infrastructure including data producing applications and their assigned storage resources.
The best practices litigation hold process reflects risk reducing best practices to ensure litigation holds are put in place as soon as possible are communicated to affected employees, that affected employees acknowledgements are tracked and that a “paper” trail is generated to prove effort to the court in case responsive email is inadvertently lost. The risk of data loss, even with detailed procedures and processes in place, is not zero. This “paper” trail will show the court the company's efforts in meeting legal requirements. A litigation hold/discovery policy with detailed procedures adopted before the company faces litigation will lower litigation cost and reduce risk overall. That being said, the above process is still costly and time consuming. The above litigation hold process can take between 3 to 6 weeks to step through during litigation.
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