Expert Series: Legal Holds in eDiscovery: What They Are and When You Need Them by Zapproved

legal hold, also known as a litigation hold, is the process by which an organization advises personnel when information must be preserved for potential litigation matters or investigations. The legal hold process ensures that information that could help to relevant to a dispute is protected until it can be collected for review or until the matter is resolved

A legal hold is initiated typically by a written notification sent from the legal department to custodians and data stewards who might have relevant information about the dispute. The notice instructs those custodians to preserve — not destroy or modify — any information that might be needed for discovery, which may include electronically stored information (ESI), such as emails and spreadsheets, as well as paper files, notes, log books, and other tangible objects. Preservation also requires that custodians suspend routine record-destruction practices, such as automatic email deletion or records management purge schedules.

A legal hold should be initiated as soon as a trigger event occurs, which activates the duty to preserve. A trigger event could be when:

  • Someone sustains an injury on company property
  • A party breaches a contract
  • The organization receives a letter threatening litigation
  • The organization receives a complaint initiating a lawsuit
  • The organization contemplates a legal action against another party

The legal hold process must begin at the earliest possible stage, or when the organization first reasonably anticipates litigation. Otherwise, crucial information could be lost, which could result in more costly discovery or sanctions for spoliation, like destruction of relevant evidence.

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