Let`s talk about the “how” of the legal release process. Most legal retention software solutions, including BIA legal retention solutions, have a legal retention authorization process in place to notify recipients that their legal retention obligations have expired. If a company uses an automated solution to manage disputes, chances are the “how” is already part of that resolution. Therefore, a legal preservation procedure and the use of a tool specific to legal retention are essential to demonstrate justifiable and bona fide efforts to preserve evidence. In general, federal courts apply the same standard to assess whether a party`s obligation to retain information has been waived: a party may cease to retain information when it is no longer “reasonably foreseeable” that litigation will arise. In other words, the courts considering this issue consider whether the party who ceased to withhold evidence could reasonably have concluded that it no longer expected litigation. By the way, people use the terms “litigation suspension” and “legal retention” interchangeably. I prefer the term “legal suspension” because it can also be used for non-procedural events – for example, regulatory audits – where it can be just as important to preserve ESI in the context of the audit as it is for litigation. That said, you may never have to disclose this information. However, if adverse parties question your organization`s retention efforts, a well-documented legal retention process and implementation efforts can be effective ways to demonstrate that your organization has taken reasonable steps to meet its retention obligations. To better understand all the stages and life cycle of a legal retention period, see the diagram below (click image for a larger view): An important note – you should be careful if custodians have multiple statutory retention periods, as releasing one lock usually has no effect on other unrelated legal holds, which may still be in force. In particular, if you have an active litigation portfolio, you may want to explicitly and clearly remind custodians in the release notice that releasing one block will not affect other active litigation. And the implementation of legal holds includes the step of sending block notifications to custodians with potentially responsive data with explicit instructions on the steps to follow to retain ESI, including suspending all automatic deletion mechanisms for email and other email platforms.

including text. As I mentioned last week, this includes potentially reactive ESIs included on custodian BYOD devices. While there may be other, less common reasons, there are three main reasons why companies release a custodian from their legal retention obligations: No matter how clear, specific, and easy to act your legal hold notice may be, you will certainly have to deal with custodians who ignore you or even do not comply with their retention obligations – even after acknowledging receipt of the Legal retention. And while this can be one of the most frustrating parts of the legal blocking process, there are steps you can take without manually sending dozens of reminders per week. Solution: Before escalating a situation with an unresponsive administrator, you should try to exhaust all methods of direct communication with him. To make your life easier, you can maintain a consistent follow-up schedule and make sure to notify caregivers who do not respond a certain number of times before taking any further action. There are legal retention tools that allow you to automate follow-up emails, making this process much easier. However, if you are still ignored after multiple follow-up investigations, an escalation notification may be required. The aim is to inform the head of the custodian bank of his inaction, to make him aware of the risks to which the company may be exposed and to ask him to intervene. The retention obligation is triggered when a dispute is reasonably foreseeable. The standard seems simple enough, but the application in practice is more than ambiguous.

The answer is in the sense of “reasonably expected”, and the meaning may vary from case to case. Common sense might indicate that the duty to preserve evidence is triggered when a prosecution is instituted. The fact is that the obligation may arise even before a lawsuit is filed if one party indicates that a future ligation is likely. Cache la poudre Feeds, LLC v Land O`Lakes, Inc., 244 F.R.D. 614, 621 (D. Colo. 2007). There is no one-size-fits-all solution when it comes to legal retention policies for businesses. Each organization needs to find the procedures that best suit its specific characteristics, such as industry, data architecture, retention policies, organizational hierarchy, etc. The obligation to preserve evidence requires a party to locate, identify and preserve electronic information and paper documents relevant to the trial.

This often requires the coordination of multiple departments and employees, as well as the suspension of routine document destruction policies. This process is called litigation hold and can become very expensive and time-consuming. However, non-compliance can have negative consequences for a party, most often in the form of sanctions imposed.