Companies must communicate directly with custodians possibly possessing relevant information. Today, custodians can literally be every individual within an organization, with sources spread across the company's information network and geographical locations. However, defining the scope of relevant participants and information is dependent upon the nature of the legal action and the organization's Information Management initiatives. This “taken in context” defines the level of action employed by the client and counsel.
An established and managed preservation plan allows companies and counsel to:

• Promptly inform all relevant custodians and sources.
• Relay explicit preservation obligations.
• Suspend detrimental (standard) business retention and destruction policies.
• Lay a formidable “good-faith” foundation.

Establish and Validate Procedures

Business's dependence on digital data and the legal system's increasing awareness of electronic evidence, direct establishment of data preservation and legal hold protocols.
Compliance imposes specific responsibilities, compelling a joint team-effort that:

• Combines the expertise and capabilities of the company
• Implements sound process and procedure
• Includes counsel's validation and continued involvement

Hold Activation or “Trigger”

Triggering a legal hold, an often hotly debated topic, is Counsel's responsibility. Activating a company's preservation obligation requires the knowledge, experience and judgment of legal counsel.

Considerations

Attorney-Client Privilege – Expect to produce notification content and reports to the court. You may be required to validate the steps taken to preserve responsive information. The notification's content should remain objective, do not include opinion or commentary on the validity or other aspects of the case .

Establish reasonable notification and preservation measures, legal hold methods should mesh with a company's normal operations and culture, minimizing disruptions.

Executive management must lead the charge, employees listen when the boss speaks.

Target notifications – plan on issuing both general and function specific Legal Holds.

Remember, these are guidelines for building a solid foundation. Preservation policies and procedures must be tailored and expanded, addressing: applicable laws and regulations, a company's applicable industry and culture, and built-in flexibility, accounting for the every changing worlds of technology and law.

General

Case Description or Summary

Provide key players with the complete picture. Explain, in plain-English, the circumstances of the matter, the facts in dispute and the applicable time-frame.

Identify

• Pertinent data-types (emails, spreadsheets, etc.) and their associated applications.
• Electronic and paper document preservation and retention methods.
• Preservation (manual or automated) tools, and how to use them.

• Have questions or need additional information/clarification.
• Seek help with data preservation tasks.

Employee Responsibilities

Custodians possessing unique knowledge and information require a more detailed assignment of tasks based on the employee's role in the legal matter, and their function within the organization:

Records Management

Suspend normal (standard) destruction procedures
Preserve relevant documents.

Information Technology

Communicate with IT personnel, giving clear and concise instructions on appropriate preservation actions.
Verify they have suspended any and all automated processes which could inadvertently destroy information, until the data is collected or determined to be non-responsive.
Identify and account for accessible and inaccessible electronically stored information.

Human Resources

Identify former (potential source) employees.

Establish reasonable measures; monitor, and follow up ensuring they comply with legal holds and preservation.

• Verify all key players are notified, understand, and acknowledge, their preservation obligations.

When designing a notification system, consider authenticating the steps taken by the organization and validating compliance with its preservation duty, demonstrating "good faith" preservation efforts.

Compliance Measures  

• Send key players periodic reminders of their obligations
• Inform employees of additional responsibilities as the scope of the legal action changes.
• Institute tracking and audit capabilities, recording actions, and combating repudiation
• Retain the messages or notifications sent to employees describing their legal obligations and responsibilities.

Education

A communication method frequently missed is employee education. Companies, with guidance from counsel, must indoctrinate employees on their preservation and retention responsibilities, providing periodic refresher training and mandatory seminars on new or revised legal requirements. They must specifically train key departments: Records, Legal, HR, and IT personnel, on the company's legal hold policies, and their exclusive preservation and compliance responsibilities.

Closing

When a legal action concludes, send employees a Legal Hold Termination Notice, reinstating regular retention policy and procedures. One caveat is the preserved information may be responsive to other legal matters requiring continued preservation of information. Establish methods of cross-referencing the information from a completed matter with active or potential future legal actions.