Everyone who has been in a personal relationship realizes sooner or later (hopefully sooner for everyone’s mental health!) that starting the relationship is really the easy part – maintaining a healthy and productive relationship takes time and especially effort. On the part of both involved…or trouble looms, “and I mean Trouble with a capital T” as an old blues tune described…where else, other than a syrupy country ballad?
When you issue a legal hold/litigation hold, whichever your preference may be, you are committing to a relationship. But this relationship is not necessarily mutually-committed. Assuming you are a legal hold administrator, either as an attorney, paralegal or corporate employee, you have the authoritative attorney (responsible attorney) to work with to ensure the legal hold remains current; then there are the custodians – they didn’t buy into this relationship, and must be in turn cajoled and driven to comply with all requirements, be responsive and engaged; outside counsel may be involved, so they need to be educated about the content and intent of the legal hold; IT needs to be involved so they are prepared for collection and possession/production demands; and you, the ever-hardworking, oppressed and set-upon legal hold administrator, must be committed to each of these component groups in turn. Some of the terms of that commitment include:
- Sending reminders of ongoing legal holds to all involved parties;
- Working with attorneys and outside counsel for periodic certification as to the accuracy and completeness of the legal hold;
- Providing updated legal holds as conditions change;
- Tracking custodian responses, and, very importantly, changes in custodian employment status – when they leave the company, who takes charge of their data, who replaces them, etc.
- And, being prepared to be deposed over your legal hold maintenance procedures. Yes, you.
This is Commitment with a capital C, to avoid that “capital T” Trouble. It’s work for everyone, no doubt, but the more sophisticated and especially the more consistent you become at doing what needs to be done, the more favorably your work will be viewed, within the company and within the courts.
Next to come – releasing a hold…not just turning out the lights and shutting the door.