What Should Be in the Hold? – Hold On Series, Part 3

A multi-part series on achieving effective legal holds, including relevant case law, content to include, processes to employ, best practices to follow, available tools to leverage, and more

In the first Part of this series, we reviewed an assortment of recent cases illustrating the potential dangers associated with ineffective or nonexistent litigation holds.  In the second Part, we reviewed the duty of preservation and the triggers to that duty and hold issuance.  In this Part, we will review the standard elements of an effective hold.

Evolution of Expectations

Formal, written legal holds became the focus of much attention in eDiscovery after the Zubulake V ruling in 2004, in which a party was sanctioned for failing to issue a hold or take other necessary steps to ensure the preservation of relevant materials. In the subsequent years, this decision was cited in numerous others, and written litigation holds became central to an effective eDiscovery preservation process. For a time, the failure to issue a written hold was treated as per se gross negligence. Though, that absolute requirement for a hold in writing was softened by subsequent cases, which allowed for the possibility of circumstances in which oral holds or other approaches to preservation may be appropriate.  See e.g. Chin v. Port Authority, Nos. 10-1904-cv(L), 10-2031-cv(XAP) (2d Cir. July 10, 2012).

What Should Be in a Legal Hold?

Five Essential Elements of Litigation Holds

Despite the allowances for such circumstances, the issuance of a written legal hold (whether in paper or via email) is still considered best practice and the standard first step in any preservation process.  Those holds can take a variety of forms and include a variety of optional content.  At root, though, all written holds need to contain five essential elements.  Each of these elements needs to be explained clearly and specifically:

• First, the written hold needs to explain the legal obligations associated with the hold. This should include some explanation of the duty to preserve, the legal consequences for the organization if it is not fulfilled, and any internal consequences for employees who violate it. It is often helpful to point out that a request for individuals to preserve materials is a common legal step and not an indication recipients are in any trouble.

• Second, the written hold needs to explain the substantive scope of what must be preserved. This may include describing the underlying events, the relevant individuals inside and outside the organization with whom communication may have taken place, and more. This should also include the applicable time range, if any, and whether the hold applies going forward to newly created materials as well.

• Third, the written hold needs to explain the types of materials that need to be preserved. This should include lists of relevant devices (e.g., laptops, phones, thumb drives), of file types (e.g., email, spreadsheets, text messages), and of example documents (e.g., internal financial reports, contract negotiation messages, annotated contract drafts).

• Fourth, the written hold needs to explain the process that will be used for preserving and collecting the subject materials. These are the specific instructions the recipients of the hold are to follow for handling the materials they possess that are subject to the hold. Should they preserve them in place? Segregate them in some way? Take other steps? When and how will they be contacted about collection of those materials?

• Fifth and finally, the written hold needs to explain how and with whom the recipients may communicate about the hold. This should include both any prohibitions on communication about the hold or the underlying matter with peers, as well as instructions for who should be contacted with any questions about scope or process.

It is important to remember that the hold must cover not only the devices and materials of individual custodians, but also departmental and enterprise systems and any automated janitorial functions that may be running on them. We will discuss this further in the next Part.

Other Legal Hold Components to Consider

In addition to the essential elements described above, there are a variety of optional elements you can include to accomplish more with the distribution of your legal hold. The three most commonly included additions are:

Receipt and Compliance Confirmation
Many organizations distribute written holds using email, and some track the opening of those messages using read receipts.  Even more require the recipients to provide an affirmative response confirming both receipt and their agreement to comply. This affirmative response can come in the form of a signed and returned document, a completed electronic form, or an email reply.

Custodian Surveys for Collection
Many organizations also use the distribution of the written legal hold as an opportunity to begin gathering details for collection planning. They distribute some form of custodian questionnaire with the hold and require its completion as well. These may be created as paper questionnaires, electronic forms, or online surveys, and they can take the place of first-round custodian interviews.

Frequently Asked Questions
Employees of an organization who have not been through a litigation hold process before typically have little familiarity with the process or its role in discovery and litigation. Questions about it are common, as are questions about scope and process. To aid employees in their understanding, many organizations draft an FAQ (“Frequently Asked Questions”) for distribution with the hold. This FAQ typically restates much of the information from the hold in a less formal way and attempts to anticipate and answer the likely questions about context, scope, and process.

Upcoming in this Series

In the next Part of this series, Legal Hold Processes and Policies, we will review the key processes involved in executing an effective hold, including identifying recipients and monitoring compliance.