When Is a Legal Hold Not a Legal Hold?
Can discovery notices have different labels or titles?
One of the most enjoyable aspects of my many years in the Information Management and E-Discovery business is the great friendships and camaraderie formed with others, especially those forged over time and experience. I enjoyed just such an ongoing friendship and conversation the other day, lunch with longtime associate Linda Ferrell-Baldwin, Senior Managing Director & expert RIM consultant with Access Sciences Corporation in Houston, TX. In addition to just catching up on our respective lives and business activities, Linda always has some insight into things she comes across working with high-level industry clients; I learn something new, or gather new perspectives, almost every time we meet from her experiences and resourcefulness in providing solutions to client needs.
During our lunch, Linda brought up the following scenario: One of her clients as a major energy industry corporation is naturally involved in numerous regulatory investigations, or requests for information. The client was very uncomfortable in labeling their investigation process, or at least the notice sent to their employees to preserve and collect data, as a “legal hold” process; rather, they wanted to call the notice a ‘regulatory notice’ to draw attention to the content. Linda wondered if I had heard similar concerns, and what my response has been, or how I would respond to the concerns.
I admit that I have wondered about this terminology in my own experience with energy providers, but have rarely had a client express concern over the label. The issue may be seen as a bit frivolous by some who read this; but for those people highly-skilled in RIM methodologies especially, labels and categorization is very important. That said, I believe this is more of a semantic issue that can be addressed individually within a client’s RIM structure, and in collaboration with a quality E-Discovery or Legal Hold software application.
A regulatory investigation notice (and most audits, internal or external, for that matter) will share almost all the same characteristics as a legal hold notice. Please note the emphasis on “notice” here – I am not saying regulatory investigations will necessarily follow the same entire path to conclusion as civil litigation matters. But most, if not all, requirements for both notices run parallel. Both require the identification of the issue under investigation (the matter); the identification of probable custodians of relevant data; expected data types and locations; methods of collection/review/production; and an established scope or time frame for relevant data creation.
But back to the labeling of the notice: The client may feel the need to specify which type of notice they are dealing with, whether for tracking purposes, RIM classification, retention schedule alignment, or other reasons. This is certainly a reasonable concern…I believe each notice can be categorized accordingly, as a regulatory hold notice or a legal hold notice. However, a proper legal hold application will more than adequately manage both types of notices within that application. The label is just another piece of metadata that is built into the mechanism, and serves to provide specific tracking, status and other reporting functions for each notice type. So the decision on what to call the notice is a decision how the client wishes to identify their data internally. After all, we have survived dual terms already – whether as litigation holds or legal holds.
However – one concern I have involves how employees will view each type of notice. There is no doubt that the term “legal” inspires a keener sense of attention from the reader…perhaps a keener sense of impending doom is a more appropriate term. Employees may tend to apply more urgency and attention to the “legal” notice than to the “regulatory” notice, simply because of the sensitive nature of the term. So, to counter this tendency, I feel one task needs emphasis when utilizing multiple labels – training, training, training. The Legal Hold Administrator and Records Manager must team up to ensure that employees understand that both types of notices carry equal weight, both must be complied with in the same manner to conclusion. The emphasis on the importance of the legal hold process through ongoing training, whether through litigation, regulatory, or audit processes, is gaining traction and rightfully so.