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Legal hold


A legal hold is a process that an organization uses to preserve all forms of relevant information when litigation is reasonably anticipated.

The legal hold is initiated by a notice or communication from legal counsel to an organization that suspends the normal disposition or processing of records, such as backup tape recycling, archived media and other storage and management of documents and information. A legal hold will be issued as a result of current or anticipated litigation, audit, government investigation or other such matter to avoid evidence spoliation. Legal holds can encompass business procedures affecting active data, including backup tape recycling.

Recent amendments to the United States Federal Rules of Civil Procedure (FRCP) address the discovery of electronically stored information (ESI) (aka e-discovery), expanding the use of a "legal hold" beyond preservation of paper documents. The amendments were written in anticipation of legal arguments and tactics related to the production of ESI, such as the cost and difficulty of producing such ESI and claims that such ESI was missing, deleted, or otherwise inaccessible when it really wasn’t the case. These changes took effect December 1, 2006 and require organizations to hold all electronic records until each legal matter is formally settled, even if an organization only reasonably anticipates litigation.

There are three main requirements that comprise a legal hold process:

An organization has a duty to preserve relevant information when it learns, or reasonably should have learned of pending or threatened litigation, or of a regulatory investigation. In order to comply with its preservation obligations, the organization should inform records custodians of the respective custodian’s duty to preserve relevant information. The organization should provide instructions for doing so.

This notification and subsequent related reminders should be created and distributed to specific custodians and should require the custodian to confirm receipt of such notification. This is far superior to the traditional use of read receipts reconciliation and follow-up because it allows for an unambiguous custodian response and provides real-time tracking and reporting on custodian responses. Further, automatic logging of all related audit trail information related to the legal hold notification process is also highly recommended.


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