To make the legal hold process as defensible as possible, track each action consistently, such as emails sent, confirmations received, follow-ups, etc. We will come back to this in more detail later. For this reason, it is important that you document the retention notification process to show when and how a legal retention period was issued and confirmed, and whether it was properly maintained from the time of the triggering event. You must keep track of all custodians and actions taken throughout the process – hold, custodian confirmations, maintenance reviews, reminders, and legal authorization. The most effective way to do this is to use legal custody automation software to automatically record all your actions. Numerous decisions have shown that it is not enough to issue a freeze notice and rely on individuals to comply with their retention obligations (see, for example, Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039 (8th Cir. 2000)). The courts have found that counsel has an obligation to monitor, and sometimes even intervene, a party`s efforts to comply with its retention obligations. 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? That said, you may never have to disclose this information.
However, if adverse parties question your organization`s retention efforts, a well-documented legal retention process and implementation efforts can be effective ways to demonstrate that your organization has taken reasonable steps to meet its retention obligations. Once a party reasonably anticipates litigation, it must suspend its current records retention and destruction policies and place a process lock to ensure the retention of relevant records. See Wagstaffe Prac. Guide: Fed. Civ. Proc. Before trial, § 33-IV[C][1]; Silvestri v. GMC, 271 F.3d 583, 591 (4th cir. 2001); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (N.Y.D.R. 2003).
The obligation to retain evidence is not limited to paper documents or the company`s own IT systems and central servers. Rather, this obligation applies to all documents that are under the control or custody of all major players in the party and that are likely to contain information relevant to the potential dispute, as well as to any location (personal devices, personal computers, etc.) where such electronic documents can be found. See Marshall v. DentFirst, P.C., 313 F.R.D. 691, 697 (N.D. Ga. 2016); see also Wagstaffe Prac. Guide: Fed. Civ. Proc. Before trial, § 33-IV[C][10].
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. Therefore, it is important to develop a robust process for identifying retention triggers and adopting appropriate legal retention periods, rather than simply waiting for litigation, which is a risky practice still pursued by many organizations. When it comes to ensuring that all custodians comply with their custody obligations, consistent oversight is crucial. In addition to regular reminders and requests for regular confirmation of retention commitments, compliance training, where the negative consequences of non-compliance are clearly defined, can be an effective tool to ensure compliance. 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. There is no one-size-fits-all solution when it comes to legal retention policies for businesses. Each organization needs to find the procedures that best suit its specific characteristics, such as industry, data architecture, retention policies, organizational hierarchy, etc. A thorough legal blocking procedure should not end after the enactment of the ban. Many questions can be opened for long periods of time, so it is important to ensure that custodians do not mistakenly assume that an active suspension is no longer in effect, while ensuring that they are duly notified when their retention obligation has expired.
If you delete, delete or destroy something that the other party could have used as evidence in your divorce case, the courts may consider it “destruction of evidence.” This may expose you to certain legal liabilities and penalties. California courts may then prohibit you from presenting certain evidence or exclude you from decision-making processes. The courts may even charge you for the restoration of the evidence you destroyed. This is usually the first step in creating a legal retention period. The legal team must determine what information may be relevant to a case. Today, it is common for this data to be stored electronically (or “ESI”), but it can also include physical documents such as logbooks and paper files. 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?). You need to ensure that your legal retention process and technology are able to record and report the following details for individual cases and custodian banks: Easily and easily unlock your locks when data no longer needs to be retained. Large organizations often use legal retention software to automate many of these steps, making it easier to notify recipients and track everyone`s activity. In addition, some storage systems and data-driven platforms include litigation retention features that can override existing retention and deletion policies, preventing data from being modified or destroyed until a legal action is resolved. An organization can issue an internal litigation preservation procedure, or your lawyer can issue a litigation preservation using a litigation preservation letter.
A business may face penalties if it fails to comply with detention orders in the event of a dispute. Sanctions may include heavy fines, reimbursement of the opponent`s legal fees, or inferences against the party who fails to comply with its disclosure obligations. However, the threat of litigation must be at least reasonably credible to trigger a retention obligation. Aimless grunts should not paralyze businesses.