Legal Hold: You’ve Gotta Know When to Hold ‘Em, Know When to…Release ‘Em
Written by Doug Austin, Editor of eDiscovery Today
With all due respect to the late Kenny Rogers and his famous song The Gambler, maybe he would have written a completely different song if he was an eDiscovery professional.
Regardless, in eDiscovery circles, we talk a lot about best practices associated with implementing a legal hold in your organization and what you need to do to meet your preservation obligation, which (as you hopefully know) can begin well before the case is actually filed – it begins when there is a reasonable anticipation of litigation.
For example, if a current or former employee files a claim for discrimination with the Equal Employment Opportunity Commission (EEOC) regarding alleged discrimination by your organization against that employee, that’s probably a reasonable time to anticipate that allegation may eventually lead to litigation and act accordingly to implement a legal hold.
And, implementing legal holds includes the step of sending out hold notices to custodians with potentially responsive data, with explicit instructions regarding steps to preserve ESI, including suspension of any auto-delete mechanisms for email and other messaging platforms, including texts. As I discussed last week, that includes potentially responsive ESI contained on BYOD devices of the custodians.
By the way, people use the term “litigation hold” and “legal hold” interchangeably. I prefer the term “legal hold” as they can be used for non-litigation events as well – for example, regulatory audits – where it can be just as important to preserve ESI related to the audit as it can be to do so for litigation cases.
However, not too many people out there talk about best practices for releasing legal holds. With so much data in organizations, it’s more important than ever to enforce retention and destruction policies to manage that data effectively, so releasing legal holds can be very important to an organization to reduce costs that might otherwise be required to keep that data indefinitely.
With that in mind, let’s discuss three opportunities for releasing custodians from a legal hold and two caveats to keep in mind before you release those custodians.
Opportunities to Release Custodians from a Legal Hold
You could have reasons to release custodians from legal holds through the case. Here are three opportunities when you can consider releasing custodians from a legal hold:
- When the Case Ends: When a case ends through dismissal, settlement or verdict, you can release the legal hold for the custodians related to that case. Obviously, right? However, the ending of a case doesn’t necessarily mean that the ESI can be released as you’ll see in the first caveat below.
- When the Custodian Isn’t Deemed Relevant After Analysis: It’s very common to start with a broad group of potential custodians at the beginning of a legal hold and then pare down as you can begin to learn more about what ESI they have and whether any of it is potentially relevant to the case or not. As you determine that particular individual custodians clearly don’t have data relevant to a given case (typically after a custodian questionnaire or interview process), then you can release them after that determination. Just make sure you keep good documentation about that process and the rationale for those decisions in case you have to justify those decisions to opposing parties – or to the court.
- When the Custodians Can be Released Due to Agreement or Court Ruling: One of the components to agree upon during the meet and confer is the scope of custodians and, hopefully, you can agree with opposing counsel on that scope, thus enabling you to release any custodians eliminated from that scope. If the parties can’t agree and the Court has to rule on scope, that becomes the milestone for determining for which custodians in question you can release legal holds and when.
Two Caveats for Releasing Legal Holds
While the three opportunities above are times when you can consider releasing custodians from legal holds, here are two caveats to consider:
- ESI May Be Relevant to More Than One Case: It’s not uncommon for ESI to be relevant to more than one case. For example, in a series of product liability cases, correspondence regarding a company’s product quality assurance processes may be relevant to all of those cases. The releasing of a custodian in one case doesn’t necessarily change the status of that potentially relevant ESI for other cases. This is why legal holds need to be issued per case and tracked per case and instructions need to be clear to custodians as to their responsibilities to continue to preserve the ESI for cases that remain active.
- Departed Custodians May Still Be Relevant: A custodian may leave your organization, but they still may possess relevant data. In those instances, it’s important that policies and procedures establish the organization’s rights and the custodian’s responsibilities to preserve that data. This could include an organization’s rights to preserve and collect data from BYOD devices that the custodian used for work purposes. Clear policies and procedures may ensure proper preservation of relevant ESI, or they may be your best defense if a custodian “goes rogue” and spoliates ESI once he/she departs from the organization.
Here’s a good example of a Release of Legal Hold Notice, courtesy of the Association of Corporate Counsel.
You’ve gotta know when to hold ‘em and, just importantly, know when to release ‘em. Don’t “gamble” with your legal hold decisions, keep good documentation so you can justify your hold releases. And, RIP, Kenny Rogers, we miss you.
For more educational topics from Doug Austin related to eDiscovery, cybersecurity and data privacy, feel free to follow, eDiscovery Today! And as part of the continued educational partnership between Ipro and eDiscovery Today, he’ll be here in the Ipro Newsroom next week with more educational content!