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What prompted this post is the recent announcement by Clearwell of the launch of their legal hold module . As a Clearwell partner, I was deciding how to best present this proposition to our UK clients.
As defined by Wikipedia, a legal hold is a process that an organisation uses to preserve all forms of relevant information when litigation is reasonably anticipated.
The legal hold is initiated by notice or communication from legal counsel to an organisation that suspends the normal disposition or processing of records, such as backup tape recycling, archived media and other storage and management of documents and information. A legal hold will be issued as a result of current or anticipated litigation, audit, government investigation or other such matter to avoid evidence spoliation.
In the US the FRCP requires organisations to hold all electronic records until each legal matter is formally settled, even if an organisation only reasonably anticipates litigation.
In the UK the CPR Practice Direction 31B states that
‘as soon as litigation is contemplated, the parties’ legal representatives must notify their clients of the need to preserve disclosable documents. The documents to be preserved include Electronic Documents which would otherwise be deleted in accordance with a document retention policy or otherwise deleted in the ordinary course of business’.
Although the term ‘legal hold’ is not referred to by name, notifying the clients to preserve can be achieved and tracked effectively by automating legal hold through modules such as that provided by Clearwell.
As the name suggests, this Practice Direction is just that and should be used as best practice in the disclosure of electronic documents. The repercussions of spoliation in litigation appear to be far greater in the US, however, the recent case of Rybak & Others v Langbar International Ltd is a UK case in which Mr Rybak used a secure erase function on his laptop after litigation was contemplated. The judge concluded that the destruction of documents was a deliberate act aimed to suppress potentially disclosable documents which would have been adverse to Mr Rybak’s case.
Although this was an extreme case of deliberate deletion of ESI and not simply a question of an ineffective legal hold, it still provides an example of the implications of not following enforceable preservation procedures. It has been muted by some in the litigation arena that the US has gone too far in its interpretation of legal hold. It is now possible that a case can be lost or severe penalties served based on a technicality – not following the legal hold process, regardless of whether data was preserved or not. Does an excessive focus on the minutiae of process lose sight of the overriding objective of the case?
I believe Legal Hold can only be a positive move for UK eDisclosure. It makes sense to automate and manage the request for organisations to preserve ESI in light of litigation in a repeatable manner, and that is essentially what legal hold is.
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