With today’s strict regulatory requirements, retaining email and other communication data in a centralized, manageable repository has become the only sound strategy in all industries. A company’s electronic communication data, including email and social media content, can be used as evidence in everyday workplace disputes and legal proceedings such as investigations, Freedom of Information Act requests, lawsuits and audits.
Archiving and ediscovery software solutions are plentiful, but it’s not always easy to make the right choice. There are functionalities that a solid ediscovery system simply must possess, and the legal hold feature is number one among them. Before we go on to discuss its importance, let us cover some basics.
What Is ediscovery?
Electronic discovery is a process in which electronically stored information (ESI) is captured, collected and preserved for the intent of being used as evidence in a lawsuit, audit or investigation. Today, it has a major impact on the outcome of legal cases – an estimated 85% of organizations in the United States are currently involved in some kind of litigation and electronically stored information accounts for 90% of all information collected for legal discovery.
Ediscovery gained importance in 2006, when the Federal Rules of Civil Procedure were amended to include electronic records – organizations were required to preserve all electronically stored information (ESI) alongside paper documentation. It involves the preservation, retrieval and production of electronic documents during the discovery stage of litigation. The term “electronic discovery” can also be used when data is retrieved for regulatory compliance, HR inquiries, proof of client communications and other similar corporate needs.
What is an ediscovery request and what happens in a case?
Faced with an ediscovery request, a company needs to disclose information as evidence. This typically includes employees’ online communication – IM chats, email threads or social media posts. The reasons can be various – an allegation of fraud, other unfair business practices, workplace disputes, privacy issues, discrimination or a sexual harassment case.
The court decides how much time the company will have to produce the required data and the parties are generally obligated to produce the relevant information at their own expense. Faced with tight deadlines and the amount of data to review, organizations often employ external, specialized legal teams to help with the process.
The costs arise mostly from retrieving and reviewing the requested data. According to MarketWatch, the majority of Fortune 1000 corporations spend between $5 million and $10 million annually on ediscovery, with several companies reporting costs as high as $30 million in 2018. A full 70% of the costs were tied directly to the physical review of documents.
Failure to deal with an ediscovery request appropriately leads to legal sanctions. A court can order the offending company to pay fees for withholding evidence. A company’s destroyed or unavailable electronic records can be presumed to have been harmful to their legal position.
Because of such risks and the sheer amount of electronic information that gets shared daily in companies of all sizes, the litigation process needs to be aided by technology. There are vendors that focus on ediscovery solutions only, and 2-in-1 type vendors that provide archiving software with ediscovery features and legal hold capabilities.
What are the most important ediscovery features?
The basic things that these solutions must be able to do is enable easy filtering and access to data and well as efficient classification and retrieval. With that in mind, there are a couple of software features which are crucial for a successful ediscovery response:
- Advanced search
- User roles
- Audit log
- Retention policies
- Legal hold
Indexing is the process in which all content metadata is collected for more accurate searching. Metadata can be anything from standard email elements (like sender or email subject) to the time when a chat message was sent, received and read.
Advanced search allows the IT and legal team to filter and locate only those records which are relevant to a particular case. It should be able to look into email attachments and contain fuzzy and proximity searching.
User roles are vital in preventing unauthorized access to data. Different groups of users (administrator, compliance team, end users) will have different permissions and levels of access and available features. The roles and permissions feature should be customizable and allow the creation of new roles for cases when external legal teams might need access to the software.
Audit or Activity log enables compliance officers and legal teams to monitor user access to the software and their behavior. This can help detect any unauthorized access and attempts at evidence deletion or manipulation.
Retention policies dictate how long the emails and other digital communication should remain in your archive before they are automatically deleted (typically 7 years). Policies depend on specific government regulations, vary across industries and can be different for various departments.
Cases allow legal review teams to classify and group archived messages based on the cases. This is especially useful for enterprise-level organizations, where different legal teams might be working on different cases simultaneously.
Notes allow compliance officers and legal teams to share insights and comments about a specific email item or case they’re working on without impacting the evidence.
Export is the basic feature in email archiving and ediscovery. It’s also the feature that many solutions struggle with the most. Once the data relevant to the case has been identified, it needs to be exported from the system (typically to .pst, .eml or .pdf) and presented to the lawyers or the court.
What is the legal hold definition?
A legal hold (also called email litigation hold, preservation order or document hold notice) is a process that organizations use to preserve relevant electronic information when they anticipate litigation or have an active ediscovery request.
Once a company learns of an oncoming investigation, audit or litigation, it must suspend the normal processing of records and must refrain from deleting email and other digital communication that could be relevant to the case. This means that certain electronic records need to be preserved beyond the originally specified retention periods. In other words, legal holds supersede and suspend regular retention schedules.In ediscovery, legal hold means that certain electronic records need to be preserved beyond the original retention period. Click To Tweet
A common problem is that the news of litigation often comes before the specifics of the case are known, so the company often must put a user’s entire mailbox on hold to be reviewed, or apply legal hold to a specific topic discussed by various users. Applying legal hold to particular mailboxes protects email and social media data from being modified by users and ensures that the data contained in the mailboxes will not be (forcefully or automatically) removed from the archive.
Freezing i.e. disabling the deletion of specific records is important because:
- it helps to avoid evidence spoliation (the intentional or inadvertent deletion, altering or destruction of evidence)
- it streamlines the archiving process as it allows you to preserve only the messages relevant to the case, while the rest can still be deleted in accordance with the original retention settings
When retrieving information for official or legal purposes, it is necessary to prove the authenticity and integrity of the retrieved data. Lawyers will insist to take a look at message metadata and check the audit trail in order to verify message integrity. You need to make sure that you can produce original, unmodified records. Messages that were altered or deleted without proper authorization and without observing retention policies could expose your company to liability.
When applied, legal hold protects the original version of each email, text message or social media record from user modification and evidence spoliation. Spoliation is a legal term which denotes any intentional, inadvertent or accidental deletion, modification or concealment of evidence. From the technical aspect, legal holds are handled through tags (or less commonly, special policies) and can be removed only manually.
What is the legal hold process flow like?
The litigation hold policy and procedures are related to the second step in the ediscovery process called preservation. The initial step, identification, involves the compliance team looking for and locating the information that’s relevant to the case. Next, they need to ensure that the records are tamper-proof and protected against deliberate alteration and destruction.
The person in charge of issuing a legal hold needs to identify the relevant electronic information, clearly inform employees that these documents must be preserved and protected from destruction or alteration, and make sure that legal hold stays in effect until the completion of the lawsuit.
In-house legal teams might have problems if documents prove to have been purged after there was a reasonable expectation of litigation. Any out-of-the-blue file deletion will be viewed as suspicious activity by litigators. That’s why it’s crucial to send out litigation hold notices to staff and clients as soon as litigation is anticipated. Moreover, staff members must be aware that they can be personally sanctioned for failing to observe their legal hold obligations.
Here’s an illustrated legal hold process diagram:
While the lawsuit is pending, all emails and other ESI connected to the case will be reviewed by your lawyers, the opposing party’s lawyers, or both. In case you locate a smoking gun email which implicates the company and confirms its guilt, your lawyers will have the early knowledge and enough time to prepare or propose a settlement.
On the other hand, if the retrieved email proves the company is innocent, the news can be shared with legal advisors for the opposition, who then may opt to drop the lawsuit. Whatever the outcome, your organization will have all the necessary info early on, which ensures there are no surprises along the way.
The devil is in the data: email archiving and legal hold
Without email archiving or ediscovery software, organizations find it difficult to respond to requests in a timely manner. Many are then forced to spend thousands of dollars on hiring external teams of lawyers and IT professionals to search through backup tapes, whose main purpose is disaster recovery, not data retrieval. This brings unnecessary costs to already costly matters.
Failure to retrieve email can result in your organization facing enormous financial loss, sanctions, substantial fines and major reputational damage. In 2015, an airline was ordered to pay more than $2.7 million in sanctions for failing to turn over electronic data, in addition to more than $4.7 million in sanctions for earlier discovery violations.
Having an archiving system that can index, store and retrieve relevant content and protect its authenticity will save you the trouble of long, manual and expensive searches and severe penalties in case you cannot produce the given documents. That’s why you must make sure your archiving software contains proper ediscovery functionalities, especially advanced search and litigation hold.
For a smooth ediscovery process, it is crucial to enforce and re-evaluate retention policies regularly, follow them consistently, train employees, and implement information governance best practices.
|Jatheon is an email archiving and ediscovery specialist with extensive experience with organizations in regulated industries. Thanks to multiple deployments options, our solutions are used by organizations of all sizes, from startups to enterprises, and come with a full ediscovery feature set for a flat price. Check out how cloud archive can help ensure full regulatory compliance.|