The Sedona Conference has released a public comment version of The Sedona Conference Commentary on Legal Holds: The Trigger & The Process offering guidance on the when and how of communicating preservation obligations in response to litigation.

Keep in mind these are guidelines not standards. Organizations should review this document, comparing their current processes and procedures and adapting what is reasonable for their business.

Regardless, qualified legal counsel must review the organization's legal hold process and procedures, ensuring defensibility in court.

Guideline Synopsis

Guideline 1

Reasonable anticipation of litigation arises when an organization is on notice of a credible threat it will become involved in litigation or anticipates taking action to initiate litigation.

Guideline 2

The adoption and consistent implementation of a policy defining a document retention decision-making process is one factor that demonstrates reasonableness and good faith in meeting preservation obligations.

Guideline 3

The use of established procedures for the reporting of information relating to a potential threat of litigation to a responsible decision maker is a factor that demonstrates reasonableness and good faith in meeting preservation obligations.

Guideline 4

The determination of whether litigation is reasonably anticipated should be based on good faith, reasonableness, a reasonable investigation and an evaluation of the relevant facts and circumstances.

Guideline 5

Judicial evaluation of a legal hold decision should be based on the good faith and reasonableness of the decision (including whether a legal hold is necessary and how the legal hold should be executed) at the time it was made.

Guideline 6

When a duty to preserve arises, reasonable steps should be taken to identify and preserve relevant information as soon as is practicable. Depending on the circumstances, a written legal hold (including a preservation notice to persons likely to have relevant information) should be issued.

Guideline 7

In determining the scope of information that should be preserved, the nature of the issues raised in the matter, experience in similar circumstances and the amount in controversy are factors that may be considered.

Guideline 8

A legal hold is most effective when it:

  • Identifies the persons who are likely to have relevant information and communicates a preservation
    • notice to those persons;
  • Communicates the preservation notice in a manner that ensures the recipients will receive actual,
    • comprehensible and effective notice of the requirement to preserve information;
  • Is in written form;
  • Clearly defines what information is to be preserved and how the preservation is to be undertaken;
  • Is periodically reviewed and, when necessary, reissued in either its original or an amended form.

Guideline 9

The legal hold policy and process of implementing the legal hold in a specific case should be documented considering that both the policy and the process may be subject to scrutiny by the opposing party and review by the court.

Guideline 10

The implementation of a legal hold should be regularly monitored to ensure compliance.

Guideline 11

The legal hold process should include provisions for the release of the hold upon the termination of the matter at issue.