The Smithsonian Magazine always seems to have a wide range of interesting and entertaining articles. I enjoyed reading one excellent article in the March 2016 issue on the coming of age of the telephone; so many concerns expressed at the time amazingly paralleled those expressed today – read “texting” for “telephoning” – where people worried that the telephone would cause less personal interaction, morals and manners would collapse, the ability and gracefulness of letter writing would disappear, on and on…basically, our society would collapse. Sound familiar? And what in the world does this have with my stated interest in writing about legal holds? In a word…communication. Or better, how to communicate, when and to whom.
It would seem to anyone involved in discovery management and legal hold administration that, as the Sedona Conference states, whenever litigation is reasonably anticipated, threatened, or pending against an organization, that organization has a duty to undertake reasonable and good faith actions to preserve relevant and discoverable information and tangible evidence. Those actions include issuing a legal hold to appropriate custodians to identify, retain and be able to produce relevant information. In other words, communicate to those custodians that a legal or regulatory matter may occur, and they basically are to save relevant information. Simple enough, except it seems some organizations still don’t get it, as shown in a recent Bow Tie Law’s Blog article or here as part of a party’s problems as noted by Ralph Losey, among others.
But we all know there’s more to legal hold communications than just issuing the hold and forgetting about it, right? Well, maybe not…so let’s look at some other points where it is essential that you must communicate, within the company or firm and outside of it. The estimable Craig Ball (a great adjective for his work, I think he would agree!) covers the communication issue among other here. The assumption here is that your company/firm has a legal hold administrator beyond the attorneys responsible for each hold.
- Replies from custodians that they do or do not have relevant information. Most legal hold management software includes this function as a basic feature.
- Reminders to custodians that a legal hold is still active. Again, this is an auto feature in many legal hold software apps.
- Legal hold administrator needs to be informed by HR of any employment changes related to custodians.
- Notice of legal hold release must be sent to custodians.
Attorneys (in-house): This is so important for a successful legal hold program, but so often overlooked.
- Periodic verification from the responsible attorney to the legal hold administrator that the legal hold is still active and relevant; attorneys need to be in touch with clients, aware of status of the matter, any court or mediator decisions, etc.
- Responsible attorney certification – attorney periodically certifies that the named custodian list continues to be correct, the matter description is current, as well as other details stated on the legal hold. This is a very important process and includes detailed steps for consistent completion.
- Outside counsel certification and verification – one of the most overlooked communications, especially for corporate legal departments. In-house counsel simply must have periodic conversations with outside counsel to discuss items similar to those under attorney certification, but usually on a higher level, but which is a way to get outside counsel certification as well. Outside counsel will probably have the best insight into matter status, can advise whether the legal hold has addressed the proper custodian departments, even though they most likely won’t know the actual custodians, and can simply keep the attorney up to date on progress. Very importantly, this communication process will help keep outside counsel focused on your matter. More on outside counsel inter-action and communications here from Joe Mann at Applied Discovery.
And again, in-house counsel needs to communicate back to the legal hold administrator on these conversations. Don’t leave the person doing the grunt work out in the cold!
Keep in mind, however, that communications should never be limited to a bullet point list; the points here just touch on some of the highly-relevant areas. Attorneys, outside counsel, legal hold administrator and custodians must have open dialogue to ensure the legal hold process is viable, current and (so important to the courts) consistent, within a legal hold and for the entire legal hold program. Make communications a priority – asking an attorney if there is any change in a legal hold, and getting a simple “No” is not an intrusion on that attorney’s time; rather, the attorney and administrator should both be gratified that everyone is actively engaged. The good old CYA is always a good thing.