No, I am not talking about a shooting a gun I am talking about a process trigger. In this case the trigger for the litigation hold process. An article I read, posted on the K&L Gates Case Summaries site, indicates that for the Seventh Circuit Court, if the litigant knows or indications are that they should know that litigation is imminent, there is a duty to preserve. In other words, pull the litigation hold trigger. To a degree, at the time you feel litigation will happen, you must begin preserving information.
Have a Plan
Litigation holds should be part of your overall risk management and governance policies. It is no longer acceptable to plead ignorance when dealing with litigation and electronically stored information (ESI). You must be prepared and train the organization on the meaning, importance, and process of litigation hold. Who is responsible for departmental information and what is the process to preserve and manage it? When litigation hold is removed, what is the process to deal with it going forward?
Monitoring
You also have to monitor and ensure adherence. Is the information being collected as prescribed? Are employees preserving email that may be in question or are they deleting this information and why? There have been cases where litigation hold was issued and employees were deleting email thinking it was not relevant. The court found this to be cause for a spoliation ruling, negligent destruction of possible evidence, and penalized the company as a result.
In My View
In today’s world, businesses must take seriously, the threat of litigation and the need to preserve information, on notice. Litigation hold is not a new concept nor is it restricted only to “official corporate records”. All information is subject to discovery, and litigation hold processes must take that into account or risk the consequences. Employees must be trained on the importance of litigation hold and the related processes they will go through to protect and preserve evidentiary materials.
Beginning Today
Review your current litigation hold processes and modify them as needed to include all ESI materials. Train employees and establish a means to monitor the process when needed. Identify the trigger in your jurisdiction to ensure you are not at risk of spoliation, intentional or neglectful destruction of materials.
Be prepared and hope you never have to pull the trigger.
What say you?
Do you have a story to tell? What are your thoughts on this topic? Do you have a topic of interest you would like discussed in this forum? Let me know. If you are looking for some great research information from our industry, feel free to visit our research site and download some of our Industry Watch Reports today at www.aiim.org/research
Bob Larrivee, Director of Custom Research – AIIM
Email me: blarrivee@aiim.org
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www.aiim.org/training
I will be speaking at the following events:
• #Share2014, June 18-20, 2014 in Johannesburg, SA
• AIIM ECMp June 24, 2014 in London, UK
• #AIIMForumUK, June 25, 2014 in London UK
• #NIRMA2014, August 10-13, 2014 in Las Vegas, NV
#EnterpriseContentManagement #InformationGovernance #BusinessProcessManagement