My replies in screaming CAPS below. (Is this good protocol? Please let me know. I'd use a different typeface or color if I could.)

-----Original Message-----
From: Records Management Program [mailto:[log in to unmask]] On Behalf Of Larry Medina
Sent: Tuesday, March 26, 2013 4:40 PM
To: [log in to unmask]
Subject: Re: Defining “Documents under Legal Hold” as Records?

Rich said:

"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."

Isn't that ALWAYS the case?  and isn't that the case whether something is a 'record' or a 'non-record' already? If it's related to the legal issue and a preservation order exists, then it has to be held.
YES IT IS always THE CASE. BUT MOST -- 99% -- ORGANIZATIONS TREAT LEGAL HOLDS OUTSIDE OF THE RECORDS/NON-RECORDS DISTINCTION. IF A DOCUMENT IS UNDER LEGAL HOLD, IT MAY BE A RECORD OR A NON-RECORD. THEY ARE TWO DIFFERENT ANIMALS -- EVEN THOUGH YOU CANT' TOSS EITHER ONE PREMATURELY, ETC. BUT THE "LEGAL HOLD RECORD" APPROACH SAYS THAT IF A DOCUMENT IS UNDER LEGAL HOLD, THEN IT IS A RECORD. IT BECOMES A RECORD IN VIRTUE OF THE FACT THAT THERE WAS A TRIGGER EVENT AND NOW IT'S UNDER LEGAL HOLD.


"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."

In my experience, it's a common practice to make an independent set of information responsive to a legal hold and maintain it separately to ensure it doesn't accidentally get altered, disposed of or otherwise become compromised during a legal action. In the old 'pure paper days", copies were made and "Bates stamped" then held aside form the general repository.
You still 'freeze' actions on the primary repository (no destruction while hold is active) but by having an independent set, you can make copies or whatever else is needed without having to disturb content in your regular filing system.

I don't understand how "...your normal retention schedule and purging policies can roll merrily along..." if there is a hold in place.  If you discard information that is in your primary repository, you aren't complying with the spirit of the hold.

IF YOU COPY THE ITEMS UNDER HOLD INTO A "HOLD REPOSITORY" FROM A SOURCE REPOSITORY, YOU MUST HOLD THE ITEMS IN THE "HOLD REPOSITORY" BUT YOU DON'T HAVE TO HOLD THE ITEMS IN THE SOURCE REPOSITORY OUTSIDE OF THE REQUIREMENTS YOUR RETENTION SCHEDULE. TAKE THE CASE OF EMAIL, WHERE YOU MAY BE JOURNALLING THE EMAILS OF AN EMPLOYEE UNDER INVESTIGATION. YOU DON'T TELL HIM THAT YOU ARE PRESERVING HIS EMAILS DURING THE PERIOD OF THE INVESTIGATION, AND YOU AREN'T CONCERNED IF HE STARTS DELETING THEM. A BIG MOTIVATION FOR SEPARATING HELD DOCUMENTS TODAY IS TO "UNMINGLE" ITEMS THAT ARE UNDER LEGAL HOLD FROM ITEMS THAT ARE UNDER THE MORE MANAGEABLE CONTROL OF A RETENTION SCHEDULE. A LARGE REPOSITORY THAT MINGLES HELD ITEMS AND UNHELD ITEMS MAKES DEFENSIBLE DISPOSITION VERY DIFFICULT. SO THE TREND IS TO SEPARATE THE TWO AND APPLY "REASONABLE" DISPOSITION RULES IN DEMONSTRABLE GOOD FAITH".

I don't see this type of policy being of much value- an organizations retention policy/practices shouldn't revolve around the possibility of  a legal action when that is actually an exception rather than the norm for business.
AGAIN, IT DOESN'T WORK FOR MOST BUSINESSES -- MAYBE IT DOESN'T WORK FOR 95% OR MORE BUSINESSES. BUT IT HAS WORKED AND PROBABLY CAN WORK AGAIN FOR ORGANIZATIONS WITH A VERY STRONG LEGAL DEPARTMENT, A STRONG RECORDS PROGRAM, AND A COMPARATIVELY WEAK LITIGATION READINESS SITUATION. THAT MAY BE A MIX YOU DON'T OFTEN SEE IN THE WILD. BUT THERE ARE LOTS OF ORGANIZATIONS, SO THERE ARE GOING TO BE ORGANIZATIONS THAT FIT THAT PROFILE. IN SUCH A CASE, TREATING "DOCUMENTS UNDER LEGAL HOLD" AS RECORDS MAY BE A GOOD PRAGMATIC MOVE. OBVIOUSLY SUCH A COMPANY SHOULD ALSO THEN BE STRENGTHENING ITS LITIGATON READINESS. WHEN IT DOES SO, IT MAY WANT TO RETURN TO THE TRADITIONAL ARRANGEMENT.

Larry
[log in to unmask]
--
*Lawrence J. Medina
Danville, CA
RIM Professional since 1972*

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