What Is a Legal Hold? Best Practices for Modern Data Preservation

A legal hold is a directive to preserve documents and data that might be relevant to a legal case. This includes emails, documents, databases, and any other form of electronic or physical data. When an organization reasonably anticipates litigation, it must ensure that relevant information is not destroyed or altered. The process begins with the identification of potentially relevant data and extends to its preservation throughout the legal matter. If you're asking yourself, "What is a legal hold?" It's essentially a safeguard to protect key information from being lost during legal proceedings.

Why Are Legal Holds Necessary?

Legal holds are necessary to comply with legal obligations and to avoid potential sanctions or penalties from the court. They ensure that all relevant information is available for review, which is critical for fair legal proceedings. Legal holds also serve as a defense mechanism for organizations, demonstrating their commitment to legal compliance and transparency.

Failure to implement a legal hold can lead to severe consequences, including court sanctions, unfavorable rulings, or even loss of the case. In some instances, the absence of a legal hold can be interpreted as negligence or willful destruction of evidence. Thus, understanding and implementing legal holds is not just about compliance but also about safeguarding an organization's interests. Litigation holds reinforce an organization's reputation for integrity and accountability in legal matters. However, even organizations with the best intentions can fall short if their legal hold tools don’t function as expected, especially when automated software is relied on without adequate oversight.

Balancing Preservation, Privacy, and Cost

Creating a legal hold strategy involves balancing three key elements: preservation of data, privacy concerns, and cost management. Here's how to manage each of these factors effectively:

Data Preservation

Data preservation is the process of ensuring relevant information is retained when litigation is anticipated. That means knowing exactly what information needs to be placed on legal hold and putting systems in place to prevent its loss. What is a legal hold? It’s a formal directive to preserve potentially relevant data, both structured and unstructured, such as reports, emails, and chat messages. Organizations must identify what needs to be preserved and ensure it is securely stored. An effective data management strategy helps organizations by: 

• Identifying Relevant Data - Pinpoints the data that is most critical to the case. This involves collaboration between legal and IT teams to understand data sources and storage systems. It is crucial to establish a thorough understanding of the organization’s data landscape, ensuring no pertinent information is overlooked. Note that legal hold tools like Microsoft Purview are limited. For instance, purview primarily covers Microsoft 365 Data, which means data in third-party apps or personal storage could be missed if not manually accounted for.
  
  
• Implementing Data Holds - Once relevant data is identified, implement holds to prevent deletion or alteration. This might include disabling automatic deletion settings and ensuring secure storage. Automated workflows and reminders can be set up to maintain the integrity of the data, preventing accidental loss. That said, software can only enforce what it’s configured to recognize; if a custodian or data source is excluded due to misconfiguration or oversight, the data may be lost despite the presence of a system-generated hold.
  
  
• Monitoring Compliance - Regularly monitor the effectiveness of the legal hold and ensure compliance across the organization. This involves training employees and conducting audits. Regular audits can uncover gaps in the preservation process and provide an opportunity for continuous improvement. It’s also crucial to review logs and hold activity; features like Microsoft’s “Priority Cleanup” can allow deletion of held data under certain conditions, which may unintentionally lead to spoliation if not carefully controlled.

Privacy Concerns

While preserving data, organizations must also consider privacy laws and regulations. Balancing data preservation with privacy involves a detailed understanding of the legal framework within which the organization operates, including:

• Understanding Privacy Laws - Be aware of data protection laws such as GDPR or CCPA that might affect your data handling practices. These laws dictate how personal data should be managed and protected, emphasizing the need for informed consent and transparency.
  
  
• Restricting Access - Limit access to preserved data to only those who need it for the legal process. This protects sensitive information from unnecessary exposure. Role-based access controls can ensure that data is accessed only by authorized personnel, minimizing the risk of data breaches.
  
  
• Anonymizing Data - Where possible, anonymize data to protect the privacy of individuals involved. Anonymization techniques can help in maintaining the confidentiality of sensitive information while still fulfilling legal obligations.

Cost Management

Implementing a legal hold can be costly, but there are strategies to manage expenses effectively. Cost management is crucial in maintaining an effective legal hold strategy without overextending resources. Organizations should consider:

• Utilizing Technology - Use of legal hold software to automate processes, which can reduce labor costs and minimize errors. Advanced analytics and machine learning can further refine data preservation processes, enhancing efficiency. However, automation should never be a substitute for validation. Features like default search limits or failure to index certain file types in Microsoft Purview can result in important evidence being preserved but effectively hidden during review.
  
  
• Efficient Data Management - Organize data efficiently to reduce storage costs. This might involve archiving older data and only retaining what's necessary. Implementing tiered storage solutions can optimize costs by categorizing data based on its relevance and frequency of access.
  
  
• Regular Strategy Reviews - Conduct regular reviews of your legal hold strategy to identify areas where costs can be reduced without compromising effectiveness. Periodic evaluations can help identify redundant processes and refine cost-saving measures. These reviews also provide a chance to detect misconfigurations, like assuming a “retain forever” policy in Microsoft 365 covers litigation, even though it can fail if a user account is deleted.

Implementing a Legal Hold Strategy

To implement a successful legal hold strategy, consider the following steps:

Step 1: Develop a Legal Hold Policy

Create a clear legal hold policy that outlines procedures for identifying, preserving, and managing data. This policy should include roles and responsibilities, communication protocols, and compliance measures. Having a well-documented policy ensures consistency and accountability throughout the organization.

Step 2: Train Employees

Conduct training sessions for employees to educate them about their roles in the legal hold process. This includes understanding how to identify relevant data and the importance of compliance. Training should be ongoing, with updates provided as legal requirements or company policies evolve. Teams should also be trained to understand the specific limitations of your legal hold software, such as what data types may be partially indexed or which features may override preservation settings.

Step 3: Leverage Technology

Invest in legal hold software that can automate the identification and preservation of data. This software can also help with monitoring compliance and generating reports for audits. Leveraging technology not only streamlines the process but also enhances the accuracy and efficiency of data management practices. But don’t assume technology is foolproof; without human oversight, you risk creating blind spots that only become visible when it’s too late. Always verify that software behavior aligns with your set policies.

Step 4: Monitor and Adjust

Regularly review the effectiveness of your legal hold strategy. Conduct audits to ensure compliance and adjust the strategy as needed to address any challenges or changes in regulations. Continuous improvement is key to maintaining a robust legal hold strategy that adapts to new legal landscapes and organizational changes. Simulated scenarios, such as removing a user under hold or testing access to preserved content, can expose weaknesses and help build a more resilient strategy.

Why Expireon Belongs in Your Legal Hold Tool Kit

To support a more effective and reliable legal hold strategy, many organizations turn to intelligent archiving solutions. Expireon goes beyond basic storage by automating retention, search, and deletion policies while keeping compliance front and center. Its ability to capture and manage data across more than just Microsoft 365 ensures broader coverage and stronger legal defensibility. With a centralized archive, legal teams can access and preserve key data faster, without the risk of over-collection. This improves review efficiency, reduces costs, and supports privacy and regulatory requirements in one platform.

Conclusion

A legal hold is a critical component of an organization's risk management strategy. By understanding what a legal hold is and how to balance data preservation, privacy, and cost, organizations can protect themselves during litigation. Implementing a well-rounded legal hold strategy not only ensures compliance but also supports fair legal proceedings, ultimately safeguarding the organization's interests.

By following these guidelines and continuously reviewing your strategy, your organization can effectively manage legal holds and mitigate potential risks associated with litigation. Legal hold software is a powerful enabler, but without continuous validation, audits, and a clear understanding of its limitations, even the best tools that don’t rely on AI can allow critical data to slip through the cracks. A proactive and adaptable approach to legal holds can serve as a strong defense mechanism, maintaining the organization's reputation and operational continuity.