Define and refine your response to litigation triggers.
Our third best practice is all about defining and refining the trigger event and your response to it.
Undefined Triggers and Uncertain Responses Waste Valuable Time
The obligation to preserve evidence attaches as soon as a party can “reasonably anticipate” that litigation will follow. However, if you haven’t defined these possible trigger events for everyone in your organization, you might not learn of likely litigation until it’s filed! Waiting too long to implement a legal hold could cause relevant evidence to be lost, opening your organization up to accusations of spoliation and attendant court sanctions.
Nor is it enough to recognize a trigger event early if your response to it is slow or lackluster. Failing to promptly initiate a preservation campaign has the same effect as never recognizing the trigger: either way, valuable electronically stored information (ESI) can be lost while you’re figuring out who’s responsible or how you should respond.
Early Triggers and Legal Hold Templates Ensure a Prompt Response
In contrast, an organization with a designated contact person who recognizes the potential for litigation early and acts on that information rapidly and effectively is well positioned to avoid spoliation sanctions.
Make sure that everyone within your organization knows who to contact — and why it’s important that they do so right away — when something happens that might lead to a legal matter. These situations could include a customer being injured, someone breaching a contract, or an employee leaving the company under contentious circumstances. Regularly update staff in other departments about the possible scenarios that they should bring to legal’s attention.
Once you have a designated contact person — and a backup — equip them with the tools they need to quickly initiate the preservation process. Pre-drafted legal hold notification templates are a great way to save valuable time while ensuring that hold notifications are written in concise, clear language that’s easy for custodians to understand and implement. The goal is to start preserving potentially relevant evidence as soon as possible, so make that process straightforward for your custodians.
Top Tips for Effective Litigation Response
- Require custodians to acknowledge holds within a defined time period. It doesn’t do you any good to send a timely hold notification if it’s ignored by the critical custodians who need to act on it. An automated system that tracks custodian responses and escalates communications with non-responsive custodians is the simplest way to ensure that all notices are complied with promptly.
- Suspend routine destruction practices. Often, preservation efforts can be implemented without even waiting for custodians to verify compliance with a legal hold notification. Determine ahead of time how you can suspend routine document destruction practices, such as email deletion protocols, when litigation is on the horizon.
- Create a defensible audit trail. Remember that the key to effective preservation is defensibility. Keeping records of everything your organization has done to respond to a trigger event — including when you took each step, what you did, and who you notified — will allow you to defend your efforts in court.
Rapid litigation response requires a coordinated effort across the entire organization. Next up in our eight-part series, we’ll look at developing the key relationships you need with other departments.