Extract from Jim Gill’s article “Why Legal Hold Technology Is More Than ‘Just Sending a Few Emails’”
When it comes to a pending litigation, the duty to preserve electronic data is clearly laid out in the Federal Rules of Civil Procedure (FRCP). Check out this recent IPRO blog for an overview.
But when it comes to the actual process of letting custodians know they need to preserve data regarding an upcoming litigation, things are a little more open-ended.
I once heard someone new to the legal tech industry say, “Legal Hold is no big deal; it’s just sending a bunch of emails,” which, while seemingly true on the surface, is the kind of gross oversimplification that can lead to problems.
An overview of the legal hold process
As stated in ZyLAB’s Ultimate Guide to Legal Hold:
“In theory, the Legal Hold process is exceedingly simple: a Legal Hold order is sent by the organization’s legal department to “custodians” (employees or others who are in possession of data relevant to the case in question), after which the custodian makes sure that this data is preserved. By doing this, no relevant data is lost to deletion or destruction, and no evidence is lost…. Although the theory is straightforward, reality is often anything but.”