Policy 8: Where a lawful retention notice is appropriate, such notice is most effective when the organization identifies the custodians and data stewards most likely to have discoverable information and when the notice: Guideline 5: The assessment of an organization`s retention decisions should be based on the good faith and reasonableness of the decisions (including the following question: whether a statutory retention obligation is required and how it should be implemented) at the time of its enactment. Guideline 10: Compliance with a statutory retention period should be monitored regularly. Guideline 9: An organization should consider documenting the procedure for implementing legal blocking in a particular case, if applicable. While legal holds are largely an American phenomenon, lawyers in the U.S. need to understand the complex but important relationship between the obligation to retain data and the sometimes conflicting right to privacy. Privacy of personal data is considered a fundamental right in many parts of the world, including increasingly in the United States. The commentary on dealing with international legal blockages is available for free download here and can be commented on publicly until October 30, 2022. Questions and comments can be sent to email@example.com. The design team carefully reviews all comments received and decides which changes are appropriate for the final version. Comment: It is not enough to issue a legal ban and hope for the best. Companies should take steps to monitor compliance and ensure that legal retention periods are met. This will often serve as strong evidence that the party has taken “reasonable steps” to preserve the records.
Comment: Especially in a large company, it can be difficult to ensure that information gets to the right people. If the in-house lawyer is not aware of a particular litigation risk, he or she cannot take steps to issue a statutory retention period. But in general, the lawyer`s ignorance does not excuse the company`s inability to retain documents. Having procedures in place to ensure that legal counsel is informed of the potential for litigation can help a company demonstrate that it acted reasonably and in good faith, even if the process fails in a particular case and results in the loss of evidence. The commentary does not claim to have all the answers to balance legal obligations and the right to privacy, but it does provide a thoughtful set of practice points that lawyers should consider when faced with an international retention obligation. I recommend it as a starting point for any international legal consideration. The second edition contains 12 “guidelines” that companies should take into account when “formulating guidelines to implement legal obligations tailored to their needs”. These guidelines are set out below, together with some explanatory notes. The second edition provides important additional details and explanations of these guidelines and is worth considering when creating a conservation guideline. Policy 12: An organization must comply with local privacy laws and regulations when initiating a legal hold and planning a legal suspension policy outside the United States. Comment: Business operations can easily grind to a halt if every piece of paper and electronic document is preserved over time due to pending legal retention periods.
This is not only burdensome for the company, but can also lead to organizational resistance to granting and implementing legal blockages. An organization`s policies regarding statutory retention periods should therefore take into account the circumstances in which a lock can be lifted in order to resume normal operations. Policy 11: Any legal retention process should include provisions to release the lock at the end of the retention obligation so that the organization can return to compliance with information management policies during its lifecycle in the absence of legal retention. This commentary on the treatment of international legal holdbacks extends Guideline 12 by focusing on “international legal holds”, defined as legal holds, which include retention obligations that cross international borders. It provides guidance and practice points for the implementation of international legal retention periods while complying with potentially conflicting international data protection laws and regulations. Comment: Beneficiaries of legal suspension typically have jobs that focus on something other than just retaining information for litigation. To be effective, a legal retention notice must give clear instructions to recipients so that they know what they need to do to comply. (g) is followed by regular reminders, so that the legal retention obligation remains fresh in the minds of the recipients. The Sedona Conference is a legal research and education institute that has published, among other things, a number of influential guides and commentaries on eDiscovery. In June 2019, they published a new publication, The Sedona Conference, Commentary on Legal Holds, Second Edition: The Trigger & The Process, 20 Sedona Conf. J. 341 (forthcoming, 2019), available from thesedonaconference.org/publication/Commentary_on_Legal_Holds (the “Second Edition”).
A large company has just learned that strict new regulations are coming into effect that will significantly increase the volume of disputes to be expected. Previously, the Corporation relied on an ad hoc process to issue litigation suspensions to ensure that it met its obligation to retain relevant documents. However, given the expected influx of new claims, in-house counsel is concerned that this ad hoc process may no longer be sufficient and is seeking advice on how to develop a formal dispute retention procedure. Comment: In hindsight, decisions as to whether litigation was “reasonably expected” or whether certain records are relevant and should be retained may be erroneous. However, the assessment of whether an undertaking acted reasonably and in good faith does not need to be assessed a posteriori. Rather, it is evaluated on the basis of the information available at the time of decision-making. This makes it all the more important to ensure that decision-makers have all the relevant information so that they can make informed decisions. Guideline 6: Compliance with the retention obligation requires reasonable and fair efforts, applied as soon as possible and in a proportionate manner, to identify persons who may have information relevant to the claims and defences in the case and, if necessary, to inform them of their obligation to retain such information. Commentary on the Sedona Conference on Legal Holds, Second Edition: The Trigger and the Process Brazil`s New Antitrust Damages Law Comes into Force Guideline 4: The determination of whether litigation is or should reasonably be expected should be based on a good faith and reasonable assessment of the relevant facts and circumstances. I am pleased to announce that Sedona`s commentary on the administration of international legal obstacles has just been published for public comment. This project lasted four years for some of us who worked on both the brainstorming and editorial teams, and it`s nice to see that our vision is sustainable. Policy 1: Litigation anticipation occurs when an organization determines a credible likelihood that it will be involved in litigation, seriously considering litigation, or taking certain steps to initiate proceedings.
Comment: The 2015 amendments to the Federal Rules were explicitly intended to emphasize the importance of “proportionality” in examination for discovery. In relatively small cases, a company usually doesn`t have to sift through every nook and cranny to make sure nothing is lost. However, in larger cases, more comprehensive measures may be appropriate. Companies must therefore think carefully about each issue to decide what should and should not be retained in a particular case. The Sedona Conference and its Working Group 1 on the Preservation and Production of Electronic Documents (WG1) announced in June the publication of the commentary on Legal Holds, Second Edition: The Trigger & The Process. Much has changed in the fields of law and technology since the Sedona Conference published the first edition of this commentary in 2010. A commenting webinar will be organized and announced via email and on the Sedona Conference website. The webinar gives you the opportunity to ask questions and get additional information on this important topic. Guideline 7: Factors that may be considered in determining the scope of information to be retained include the nature of the issues raised in the case, the accessibility of the information, the probative value of the information, and the relative burdens and costs of retention efforts.