Are you Readyto Face the Elephant in the Room_-1

Your lawyer places an urgent call to you while you are on vacation. You hear the news with a sense of dread, anger and frustration: your company has just been served with a Litigation Hold Notice or Discovery Request.

What do you do?

That depends greatly on what systems and policies you already have in place. If your company’s Data Retention and Destruction Policies are current and meticulously followed, then the response to the Litigation Hold will be seamless. If your company does not have a Data Retention and Destruction Policy, you may be in for a big surprise.

Courts have sanctioned companies who have been unable or unwilling to produce documents (stored electronically or otherwise) in response to demands for such information. The time, cost and expense of retention and retrieval of documents pales in comparison to court imposed sanctions. Suddenly, the spotlight of justice may be turned on the internal operations, policies and procedures of your company, causing your IT Department and in-house counsel to spend inordinate amounts of time giving depositions or testifying at trial.

Wouldn’t you much rather be prepared for the Litigation Hold or Discovery Request? That is the purpose of this blog and our mission – to help you “Tame the Elephant.”

What is a Litigation Hold?

It is a written directive advising custodians of certain documents and electronically stored information (“ESI”) to preserve potentially relevant items from spoliation or destruction. When you already have a system in place and your staff is trained on the necessary steps to preserve and respond to the demand, minimal disruption occurs inside your company.

There are three primary parts of such a system: (i) Data Retention Policy, (ii) Data Destruction Policy, and (iii) Employee Data Security Policy. Of course, this article can only touch on the highlights of the components necessary for each type of policy.

  • Data Retention Policy
    1. The policy should set forth the schedule for retention of documents based on applicable legal standards and include a provision for suspension of normal operation when a complaint is received. This may require communication with IT departments to prevent automatic deletion, especially emails.
    2. Determine the minimum standards for Data Retention in your industry. For example, employers in Texas should be aware of the Texas Workforce Commission’s rulings and recommendations. According to the TWC, termination letters and employee files should be maintained for at least 4 years to ensure relevant documentation is readily available if the need arises.
    3. While there is no obligation to preserve irrelevant data, your response must cover all documents that could potentially be relevant to the dispute. The best practice is casting a wide net and then narrowing the scope, if appropriate, as the case develops.
  • Destruction Policy
    1. Include a chain of command with clearly defined roles for persons who will be responsible for ensuring only non-relevant data is deleted.
    2. Immediate suspension of any automatic deletion as soon as notice of litigation or adverse action is received.
  • Employee Data Security Policy
    1. Take all appropriate measures to train employees to ensure they understand their role in implementing and maintaining these policies. Document the training for future reference and update the manuals and policy as needed, with at least an annual review and overhaul.
    2. As part of this retention policy, make sure to document all search terms used to locate electronic data, and all efforts made to gather and preserve such records if a dispute arises. This will ensure that a trail of breadcrumbs will be available to the next person trying to find the same document at a later date.

If your company does not have these policies in place or could use more guidance, help is available. Digital Discovery (our partner in Tame the Elephant) has the expertise and programs to help your IT and HR Departments create these policies. Shields Legal Group can help on the legal end to ensure that your company is in a good place regarding ESI.

Take care of your business now, so when you do receive that urgent phone call from your lawyer (while on vacation), you can confidently say, “No worries. We can handle that.”

Your needs. Our approach. Your business is our priority.

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