Records Management

When you need to remove a document due to attorney-client privilege or due to some other restriction you need to follow the negotiation on both sides of the legal issue. When the search is complete the documents must become records if they are not already and they need to be placed under a hold. In some cases they will be copied and transferred to the opposing council for reference.

So whenever a court or some other authority orders a company to go through a discovery process they need to search all of their documents and find the matching ones. They are placed on hold or suspension so that the normal procedures of retention schedule wouldn’t affect them. The company or organization that is performing the discovery must ensure that the original context of those documents is not altered, meaning that those documents need to be delivered in their original form. Performing spoliation under those conditions would mean breaking the law.

To better understand the process of discovery you need to understand what hold and spoliation are. Hold is a simple legal process that ensures that the documents in question are not destroyed as a part of the retaining schedule. Hold ensures that they are kept away from their destruction date, which remains until the hold is lifted. When the court case is over if there is no need for those documents anymore the hold will be lifted, but sometimes the documents may be copied and archived by the court for future reference.

With that being said it is understandable why spoliation is forbidden. Spoliation is deliberate destroying or altering the content of the documents in question. The team or organization that is performing the discovery must ensure that they do not alter the content of the document.
If you happen to find yourself in a process of discovery either by court order or a government investigation you will go through three legal hold processes:

1. Hold notification
2. Segregated repository for ESI
3. Ongoing preservation obligation
4. Hold Notification

When a discovery order is issued the legal hold begins. The first phase is hold notification. Hold notification involves informing the custodian of the records in question either by the company or by legal means from the court or authority that ordered the discovery. The notification that the custodian receives is not just a receipt telling that he received the order. This notification allows custodian responses and it will also provide reporting and real time following on those responses from the custodian.

ESI stands for “Electronically stored information”. Unlike with physical records, electronic records are harder to find and cross-reference, they are easier to modify. They are also harder to identify, the system used needs to have a very accurate approach that at the same time enables electronic and archived communication. That includes e-mails, web transactions, metadata and communication from manual devices. All of them need to be sorted according to relevance. ESI have a greater risk of being altered or deleted so they should be kept in an isolated repository.

Ongoing Preservation Obligation

Ongoing preservation obligation is not actually a phase nor a process but rather an obligation given to the company by the authorities. It states that once a company is presented with a notice of a lawsuit all further electronic communication will also fall under the legal hold. So it is a warning stating to watch their future communication.

In order to fully understand what a legal hold is the definition says it clearly: “Legal hold starts with a notice or any form of communication coming from the legal counsel that is directed to a company which at that point puts a stop to processing or disposition of the records, that includes tape recycling, any form of archived media or other form of storage and documents management and information. Legal hold shall be issued as an outcome of an anticipated litigation, lawsuit, government investigation, audit or any other similar matter on order to avoid possible spoliation of evidence. A legal hold may encompass procedures that affect active data, even recycling of backup tapes”

One thing to keep in mind is that more and more organizations are using electronic records rather than physical records. Electronic records can be modified and destroyed much easier and sometimes it is hard to even prove the existence of an electronic record. So in case you receive a discovery order a smart thing to do would be to keep a physical record backup and a physical file plan.

The article describes in length what a discovery is, the effects of it and the effects of legal hold as an important step in records management discovery.