When litigation arises, it is critical for an organization to implement and enforce a hold order notice quickly and accurately to avoid sanctions.  Hold Management Services allows you to filter and search notice recipients by typical attributes like job classification or business area so you can identify all employees who had any involvement.  And you can deliver those hold notices through a secure, closed communication channel for compliance verification every time.

GRIP™ Hold Management helps outside counsel:

• Ensure their clients have a defensible, well documented hold management process
• Serve as the Professional Administrator for all their client’s litigation holds
• Manage the collection of responsive documents for review
• Eliminate the use of email for communicating holds

Built on our new Global Records and Information (GRIP™), GRIP™ Hold Management is engineered to enable outside counsel to efficiently and cost effectively provide critical support earlier in the litigation process.

You can learn more about the session, and sign up to participate, by visiting our registration page. Sessions are limited.

Judge Scheindlin noted in her opinion, which supports the precedent-setting 2003 opinion she wrote in Zubulake vs. UBS Warburg, that the courts do not expect perfection, but, “By now, it should be abundantly clear that the duty to preserve means what it says and that a failure to preserve records – paper or electronic – and to search in the right places for those records, will inevitably result in the spoliation of evidence.”

The sanctions came in response to the plaintiff’s lack of effort in enacting litigation holds, including the failure to procure documents and the failure to stop the destruction of information in the case of The Pension Committee of The University of Montreal Pension Plan vs. Banc of America Securities LLC.

It is critical for companies to be able to quickly enact a litigation hold order, accurately identify likely custodians, and have complete assurance that the hold reach the intended recipients to protect companies from these types of sanctions. This expectation was set with the Zubulake opinion, and the recent ruling reinforces that companies must have a solid hold management system.

Counsel’s knowledge of where everything from the bytes that may be critical during e-discovery and the bits that poses security concerns lives in your company is a vital to protecting your company. A ruling in which sanctions were made against a company for deleting case critical information from employee Blackberrys is but one example of the risks companies and counsel face when they are unable to effectively enforce a litigation hold.

Having a detailed datamap that illustrates where business information lives is the cornerstone of effective, defensible and enforceable litigation hold orders. A comprehensive datamap helps companies take proactive steps to make sure critical information doesn’t walk out the door or vaporize into an electronic black hole.

Counsel must take a proactive approach to litigation holds to mitigate the risks of improper or negligent litigation hold methods. In order to do this, counsel must understand their company’s IT policies and processes to properly enact hold orders for electronic information. Additionally they must have a strong and immediately enforceable process in place to enact a company-wide hold order on information and documentation that will stand up in a court of law.

Having a solid process in place long before the discovery of pending litigation is one of the best defenses a company has against unnecessary sanctions and costs.

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The Sedona Group has published a series of guidelines to help companies successfully establish and manage a litigation hold process.

Guideline 1 | Reasonable anticipation of litigation arises when an organization is on notice of a credible threat it will become involved in litigation or anticipates taking action to initiate litigation.

Guideline 2 | The adoption and consistent implementation of a policy defining a document retention decision-making process is one factor that demonstrates reasonableness and good faith in meeting preservation obligations.

Guideline 3 | The use of established procedures for the reporting of information relating to a potential threat of litigation to a responsible decision maker is a factor that demonstrates reasonableness and good faith in meeting preservation obligations.

Guideline 4 | The determination of whether litigation is reasonably anticipated should be based on good faith, reasonableness, a reasonable investigation and an evaluation of the relevant facts and circumstances.

Guideline 5 | Judicial evaluation of a legal hold decision should be based on the good faith and reasonableness of the decision (including whether a legal hold is necessary and how the legal hold should be executed) at the time it was made.

Guideline 6 | When a duty to preserve arises, reasonable steps should be taken to identify and preserve relevant information as soon as is practicable. Depending on the circumstances, a written legal hold (including a preservation notice to persons likely to have relevant information) should be issued.

Guideline 7 | In determining the scope of information that should be preserved, the nature of the issues raised in the matter, experience in similar circumstances and the amount in controversy are factors that may be considered.

Guideline 8 | A legal hold is most effective when it: (a) Identifies the persons who are likely to have relevant information and communicates a preservation notice to those persons; (b) Communicates the preservation notice in a manner that ensures the recipients will receive actual, comprehensible and effective notice of the requirement to preserve information; (c) Is in written form; (d) Clearly defines what information is to be preserved and how the preservation is to be undertaken; (e) Is periodically reviewed and, when necessary, reissued in either its original or an amended form.

Guideline 9 | The legal hold policy and process of implementing the legal hold in a specific case should be documented considering that both the policy and the process may be subject to scrutiny by the opposing party and review by the court.

Guideline 10 | The implementation of a legal hold should be regularly monitored to ensure compliance.

Guideline 11 | The legal hold process should include provisions for the release of the hold upon the termination of the matter at issue.

This sound exactly like a new service we are launching next month (I wonder how that happened).  If your company needs a hold management process that meets these guidelines, we have and excellent, cost-effective solution.  Contact us at any time to learn more.

Current software is over-kill in terms of cost and complexity and the industry noise levels are drowning out practicalities. There are four standards to start things off.

Know where to look. The litigation hold process should start with in-depth knowledge about all record types held, who owns or controls them and where records are held and where they are not. Hold orders can be more specific and enforceable with this information.

It has to be a consistent and repeatable process. This explicitly means that automation is required, that it must be simple and not require special training or skills to activate.

It has to be securely communicated. Sending hold orders via email is not reliable. Bounce backs are common, which lead to man hours of follow up and error-prone instructions. Companies that operate in the European Union have further issues with such communications. A secure, reliable and controlled channel is required.

It has to be well documented. Who was notified, how they responded, what they did, when reminders were sent and what the responses were, and so on. It all needs to be available to present to the court.

A litigation hold process built on these cornerstones is practical, effective and defensible. Jordan Lawrence has in-depth experience in developing and implementing hold management processes that work for companies of all size and industry. Let’s talk about your needs.