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Subject: Re: Legal Holds
From: Deidre Paknad <[log in to unmask]>
Reply-To:Records Management Program <[log in to unmask]>
Date:Fri, 1 Dec 2006 15:19:43 -0500

text/plain (157 lines)

Long post with a couple of additions, caveats, and comments on the
approach recommended by Iron Mountain follow.  I've helped a dozen
Fortune 100 litigation departments institute legal holds processes and
software in the last few months alone and am an active participant in
the Sedona legal holds working group, so forgive the message length and
rant :~)      

First, legal holds apply well beyond information typically described as
a record -- simply ALL the potentially relevant information that exists,
regardless of its form, at the time the litigation was reasonably
anticipated or initiated.  Using the word "record" may give the wrong
signal to employees, IT, and others who need to comply with the legal
hold.  As noted in posts earlier this week, quite a few people are
having a tough time figuring out what a record is :~)    

Second, the path noted for onsite records and information on PCs that
delegates responsibility to business unit managers and IT to identify
and communicate the legal hold to employees is quite controversial and
not a best practice.  Most outside counsel will choke on the suggestion.
In Zubulake V, Judge Schiendlin clearly makes it COUNSEL'S
responsibility to 1) identify, 2) communicate, 3) interview, and 4)
monitor the hold.  Neither in-house nor outside counsel can pass the
buck nor drop the ball.               

In terms of developing company practice, focus on developing a process
that is easy to defend after the fact -- it must stand up when looked at
in retrospect.  This typically translates into the litigation department
literally documenting each and every employee and store they identify as
likely to have relevant info, documenting each and every notice
(reminders are required), instituting confirmations of compliance with
the hold (a form of monitoring), and keeping this critical record of the
process over the length of the matter.  

WRT ownership and accountability, the responsibility to identify the
people and systems with potentially relevant information belongs to
litigation counsel.  Accountability for communicating the duty to
preserve to employees and 3rd parties also belongs to counsel.   I agree
that counsel must enlist the relevant "stewards" -- IT is the steward of
the systems or containers and records managers is often the steward of
information content -- to make good determinations of relevant people,
data, and systems... but that stops short of passing the responsibility
to them.  

Litigation is well served by having a good map of the systems,
information stores, records coordinators, and record and information
types along with an accurate directory of employees by department so
they can readily manage the scoping of legal holds.   They are also well
served by automating as much of the communications and collections
process as possible, in particular the management of the fact trail for
each hold and for each custodian of data.      

Employees (whether they are records managers, IT staff or some other
function) have an ongoing obligation to follow company policy and ethics
standards, within which legal holds falls.  Requiring certification of
compliance with holds has emerged as a best practice for all notice
recipients, regardless of their role or function.  A well written notice
will articulate their role-specific responsibilities in the context of a
specific hold.       


Deidre Paknad
PSS Systems
Atlas Legal Holds & Retention Management Software 
[log in to unmask]


-----Original Message-----
From: Records Management Program [mailto:[log in to unmask]] On
Behalf Of Lisa Shimamura
Sent: Friday, December 01, 2006 11:07 AM
To: [log in to unmask]
Subject: Re: [RM] Legal Holds

Hi all -  You may find this recommendation useful.  I received it back
June from a Special Webcast "Preparing Your Company for Litigation" by
Compliance Week and Iron Mountain.  The Oversight Committee that I am
working with agrees with the approach recommended.

By defining a specific hold process for each of these four categories
help ensure all relevant records are being preserved. Ownership and
accountability can be clearly assigned.

For onsite records - (such as the current contract documents filed in an
office area) identified as potentially relevant, the hold notification
should be communicated by Legal to the business unit managers. The
unit managers are responsible for communicating the hold to all affected
employees in their department. They are also responsible for
back to Legal that the hold has been put into effect and that the
is fully complying with the hold requirements. It is a good idea for
business manager to include in the communication to Legal a list of the
individuals in his or her unit who are believed to have relevant
and the type of records. This enables those administering the Hold and
collection of records to start a checklist of where to look for records.

For offsite physical records - (such as older contract documents), if
potentially relavant, Legal should communicate the hold notification to
appropriate records manager. The records manager is responsible for
that the required records are put on hold. If the company uses an online
record management portal such as Iron Mountain Connect, the records
can quickly implement these hold rules. The records manager is also
responsible for communicating back to Legal that the requested items
been put on hold. If the records manager has developed a list of the
specific records classes placed under the Hold, he should communicate
list to the individual managing the Hold.

For online electronic records - (such as scanned contracts and recent
contractual correspondence) if potentially relavant, should be
by Legal to the IT systems administrators. The IT administrators are
responsible for suspending the deletion of electronic records from the
servers, and for notifying individual employees to suspend deletion of
information from their PCs . Both the IT administrators and the
employees should be required to confirm back to Legal that they have
received the notification and that they have complied. IT administrators
should identify to the Hold administrator the names of the employees who
have been asked to suspend deletion of information.

For off-line electronic records - (such as email contractual
stored on backup tapes) if potentially relavant, should be communicated
Legal to the Data Center managers. The Data Center managers are required
identify the specific backup tapes and to ensure these tapes are removed
from the organization's normal tape rotation process so that the tapes
not deleted or over-written. They should also be required to confirm
of the hold notification and that they have executed the hold,
including, if
practicable, a list of the tapes placed on hold, or the date ranges of
placed on hold.

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