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There are many companies that rely on collection of data as the method of preserving it (legal hold).  It is not less effective than sending notices to preserve, certainly, as legal has taken custody of the data to be preserved.

Be cautious of shifting the problem, though.  Companies that use this approach with large or diverse litigation often end up with a dedicated collection staff who collect documents for every case even though a large majority never proceed to discovery and the vast majority settle anyway.  Legal will need and want to distinguish between what was collected to preserve and what needed to be collected for production -- without having to repeat the collection and without duplicating the data if possible.  This requires more than trivial record keeping and inventory.  The other unintended consequence is a very large pile of legacy data accumulated in legal from every single matter that comes in the door (not just those that proceed to discovery) that is uninventoried and just as difficult to destroy at the end of the case -- and is itself subject to future legal holds.   This pile can easily reach 100TB in 12 months depending on your litigation load, data volume, and method of data/discovery management.   Think 2-6GBs/person times your matter volume times your average custodian count; avoid imaging everything!  Depending on your litigation volume and the diversity of information sought, collecting to hold may be the most expensive approach.

A few options for reducing the cost and complexity might include:
1. Increasing the precision of your notices so they are easier to read by the recipient (RIM, IT and general employees all think in different information contexts).

2. Creating an employee portal that shows the current legal holds and current retention schedules applicable to a single employee -- they don't need to fish in their inbox for hold notices and look somewhere else for retention schedules as they'll have a more definitive and easier source of truth.

3. Automating data holds on claims and other files directly in your claims systems to remove the burden and concerns of custodians so disposal can be routinely performed.  My experience in insurance companies is that a very small pool of data accounts for 90% of discovery data and it is often in systems that enable holds to be automatically propagated as soon as legal scopes the hold.

4. Automate data collection from custodians (if you choose that as your method of holds) so you won't need a dedicated team. Ensure that the automation method also catalogs all collections, ties them to both custodian and to case, helps legal distinguish between what was intended for preservation vs what was produced, and enables disposal at case end for custodians without other holds.

Hope this was helpful; let me know offline if you to discuss the pros and cons of the options in more detail.  Happy to share my experience.
Deidre

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Deidre Paknad
PSS Atlas
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-----Original Message-----
From: Records Management Program [mailto:[log in to unmask]] On Behalf Of Mary Frances Janicik
Sent: Sunday, November 29, 2009 4:32 PM
To: [log in to unmask]
Subject: [RM] Destruction Hold Process

At the risk of being "electronically attacked," I'd like to get your collective perspective on a change in the destruction hold process that is being floated in my company. The suggestion hit me as rogue and out of the mainstream, but considering the type of cases we get, it merits consideration. I'm just wondering if anyone has explored this option in the past.

Before I go any further, let me assure you that my company - an insurance company - has a sound and aggressive hold process in place. At the slightest hint of legal or regulatory action, Records Management Services sends a hold notification to custodians, unit records coordinators, business compliance officers, and business legal contacts advising them of the impending action, the parties/timeframes involved, and the particular contracts that are impacted. Recipients are advised that all documents related to the action - records and non-records - cannot be destroyed until they are notified that the hold has been lifted. Requests to search the records repositories are also made and these documents are placed on hold. Once the legal hold is issued, the legal team collects all documents related to the actions, leaving the custodians a "receipt" indicating the documents have been turned over to legal. Once the case has been resolved, Records Management issues the hold release, and normal destruction activities can resume. Holds can be in place anywhere from one month to many years. Oh, and anyone whose name is on an open hold is prevented from using instant messaging tools since we can't monitor them and the pc/laptop of associates on the open hold list is copied and stored in our vault when the associate leaves the company. I won't even begin to discuss the process we use to monitor emails for these folks.

The suggested change is to eliminate the hold notification process altogether. Instead, Legal or Records would contact the appropriate custodians and obtain the documents related to the case. These documents would be "locked down" until the case ends. In the rare event that subsequent documents are created, a copy of these documents would be sent to counsel and added to the "locked down" collection. Since legal has collected all the documents related to the case at the outset, there is no need to issue a destruction hold to the masses or to the custodians.

Since the majority of our cases relate to specific insurance claims or investment practices on specific contracts, it is easy to isolate the documents that may be related to the case up front. It's very rare that new information is received on a case because most legal actions relate to past actions of the company.

The interesting part of this proposal is that it was made by one of our litigators with the thought that it might aid our destruction processes, particularly for electronic documents. The old philosophy in the company was to save everything if there was even a hint of legal action. As a result, people are reluctant to dispose of electronic documents because they don't know if they relate to open holds and they don't have the time to research it. Therefore, they take the easy way out - save it all.

Does anyone know of a company that explored this type of approach?

Mary Frances Janicik, CRM

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