This isn’t an early April 1 post. I have a serious question and wonder if 
any of you folks seen the following. We have and it’s worked. But it only 
works in companies where Legal has very strong control over the RM 
function. The idea is to define “documents under legal hold” as records. 

Here’s how it looks:

The company groups its information into two general categories: Records 
and Non-Records. A Record can be either a Business Record or a Legal 
Hold Record. 

Business Records include any information that belongs to a category in 
the Business Records Retention Schedule. Typically operational or 
regulatory in purpose, a Business Record is information which was 
created or received by the company that should be preserved for 
business or (non-hold!) legal reasons. Once the required retention period 
has elapsed, the Record should be destroyed unless it is are under Legal 
Hold. So far not crazy, right? But wait….

Legal Hold Records include any information that is subject to a Legal 
Document Hold and must be maintained in accordance with the Legal 
Document Hold and Document Production Policy. A Legal Hold Record can 
also be a Business Record, but it need not be. It could be a Non-Record 
that has become subject to a Legal Document Hold. Information in either 
of these two categories (Business Records and Non-Records) is 
potentially discoverable and may become a Legal Hold Record. All 
information under Legal Hold must be maintained and not destroyed for 
the duration of the Legal Hold, even if the information’s retention period 
has expired.

This arrangement has made things easier for the company’s Legal and IT 
groups to get greater control over both documents under hold and 
garden-variety records. They are using the same general approach and 
technologies to manage their “records” whether they are of the first or 
second type. It also makes sense if you step out of the box and see it 
through really fresh eyes: a trigger event is just an event, right? 

So this approach seems to make great pragmatic sense in certain 
situations. But ironically, current trends might make it no longer useful in 
even these special situations. Managing ESI in place is declining while the 
trend is to manage such content by copying it into a dedicated hold 
repository. That special repository approach has many advantages – 
particularly that your normal retention schedule and purging policies can 
roll merrily along without concern for spoliation. In other words, the trend 
is to always treat ESI under hold differently than garden-variety records. 
So for pragmatic reasons the deep conceptual differentiation between 
Records and ESI-under-hold may be with us for a long time.

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