by Brad Harris
This week The Sedona Conference Working Group on Electronic Document Retention & Production (WG1) issued an updated Commentary on Legal Holds, reflecting evolving case law and best practices since 2007. The document remains an exemplary resource for practitioners charged with determining when a legal obligation to preserve data arises (the “trigger”) and best practices for ensuring reasonable and good faith efforts are implemented to fulfill that obligation (the “process”).
A lot remains the same – the importance of establishing a well-defined and repeatable process, the value of documentation and record-keeping, and importance of good faith and reasonableness. It reflects evolving trends toward the consideration of proportionality, as illustrated by the Rimkus opinion, when considering the scope of preservation efforts (e.g., accessibility, probative value of information, and relative burdens and costs of preservation efforts). The Commentary takes into consideration the evolution of technology that can allow for other means of preservation, and it reinforces the value of cooperation and dialog between parties (referencing The Sedona Conference’s Cooperation Proclamation).
The Commentary’s Guideline 8 points out how the use of a written legal hold is often appropriate, although “it is simply one method of executing preservation obligations” – other approaches may be appropriate, such as when relevant information stored within an email archive can be reliably preserved in place, a pre-emptive collection is performed, or when records management policies and practices ensure data retention.
Yet a notice is most effective when it communicates clear expectations, is in an appropriate form, and is periodically reviewed and updated. Guideline 8 goes on to describe the importance of ensuring compliance, including having a means of verifying the recipients understand their preservation duties and obligations. Further, Guideline 9 reiterates the importance of sound documentation and record keeping for defensibility.
The authors are to be commended for their work, and legal teams are encouraged to take a fresh look at their guidelines for best practice.