Legal holds (litigation holds, preservation notices, whatever label you choose) are an integral part of any litigation action, audit or regulatory matter of consequence, and a comprehensive legal hold program should be a “must-have” in corporations and law firms if they expect to develop a truly robust and defensible litigation management program.  But a common question, and coincidentally a common misperception, is what purpose does a legal hold provide other than just alerting potential custodians of the need to preserve documents and information?  Is the (mis)perception that the legal hold document is only that…a onetime document and notice that is routinely shelved and forgotten by all except a few highly-engaged individuals, only to be frantically searched for during court proceedings?

Well, no.  A sophisticated legal hold program includes not only the well-constructed and implemented legal hold document, but many processes to ensure that all involved parties – your client employees, your in-house and external counsels, and your Legal Hold Administrator – know what to do and when, are reminded of the existence of the legal hold(s), and updated on status as needed.  So, there are many integrated and important processes included in this very important function.  I am not going to go into all of them here; rather, I would like to show how one process can be so important to the success of your legal hold program, with my position supported by a recent court ruling and one state bar’s change to their CLE requirements.

The court case I’m referring to was recently discussed in a post by Kathryn Cole at FarrellFritz Attorneys regarding Rodman v Safeway, Inc.(11-cv-03003) (N.D. Ca.) (JST), where, in part, the Court found that defendent’s counsel provided no guidance or counseling during their client’s document search, but rather left client who possessed no search or other e-discovery expertise basically in the lurch during discovery attempts.  This appears in violation of FRCP 26(g)(1)(B), which requires the attorney to certify (sign) that their (or their client’s) discovery response is “consistent with existing rules”, “not interposed for any improper purpose”, and is “neither unreasonable nor unduly burdensome or expensive…”.  The defense counsel failed this requirement and was duly sanctioned at over $516,000 for not providing guidance and not certifying that the responsive documents were complete and accurate.

So, what does this have to do with your legal hold process, you might ask…and a good question.  Most legal hold programs that I develop for any law firm or corporate client would include a recommendation to include a “Legal Hold Certification” process.  Simply put, if attorneys are compelled to “certify” to the results of their or their client’s discovery production at court, why not bring that certification safeguard into the legal hold process itself?  In-house counsel and external counsel to differing degrees, must be actively involved in, or at least aware of, the collection, analysis and production of data that is relevant to their matter.  They do not have to be IT technical experts, but must know what’s going on and be “discovery knowledgeable” in order to assist or guide their client in the process.  As far as technical expertise, courts are expecting counsel to be more knowledgeable in e-records search and analytics tools and process and Technology Assisted Review (TAR) processes, as indicated by the recent addition of technical CLE requirements by the Florida Bar that attorneys acquire 3 hours of technical experience in addition to their existing 30 CLE hours.

The legal hold certification process need not be complicated or overly time consuming; a periodic notice should go out to each attorney who is responsible for one or more active legal holds, providing them with a form to complete showing they have reviewed and stipulated that the hold is still accurate, custodian list is current, time line is the same…basically that the hold has not changed, or that updated holds have been circulated to reflect changes.  The in-house responsible attorney should also be expected to contact any engaged outside counsel for certification that their responsibilities regarding the hold are being met.  There may be more or fewer processes to certify, depending on the complexity of the legal hold and the matter.  Once this process is in place, continued certification as needed becomes less and less time-consuming but continues to be very important.

This process simply but very visually brings your entire legal hold process up to another level of sophistication…courts will like it, opposing counsel may not like it but they dang-well better appreciate and respect it!  Legal hold certification is a good process, like other aspects of the legal hold program needs proper administration either inside the client company or the law firm, or by outside specialists.