Dear Paul,

 

In my view, just about every organization needs an auditable, centralized
process for tracking legal holds.  This is a critical internal control and
is not be taken lightly, yet most organizations admittedly lack good
controls in this area. Processes are not comprehensive and properly
coordinated across the enterprise through proper policy development and
training. I will provide a few reasons here for that somewhat lofty
statement here, but am glad to take this important topic offline if you
would like to discuss further.

 

Legal hold management has become a focal point since the passage of the
amendments to the Federal Rules of Civil Procedure last year, but the duty
to preserve in the face of known or anticipated litigation has always
existed at common law.  The new rules are procedural and merely speak to the
dire consequences that could result when an organization cannot demonstrate
that it has procedures in place to suspend the routine disposition of
information.  Additionally, in 2002, following the Arthur Andersen debacle,
the Sarbanes Oxley amendments included changes to the federal obstruction of
justice law.  In essence, one could get up to 20 years behind bars for the
destruction or concealment of information relative to pending or
"contemplated" federal proceedings.  Effective compliance with the Federal
Rules of Civil Procedure and the Federal Obstruction of Justice Law is
unattainable without the existence of an enforceable records and information
management program.

 

The use of Excel or Access, as suggested in other responses to your post may
be fine as an interim measure (i.e. a band-aid).  In large organizations, or
even smaller entities that have regular litigation exposure, however, a
static repository is not enough.  I do not favor or suggest capital
investment in a clunky new IT system (with software licensing and all the
trimmings) for litigation hold management.  After all, as many on this
Listserve correctly have pointed out, the starting point is having an
understandable policy and proper employee training.  

 

A simple database that tracks litigation holds will present difficulties if
it is not accessible to and regularly updated by outside and inside
litigation counsel, or whoever in-house has been charged with oversight of
litigation.  Put differently, litigation hold management (like reserves
management for FSAS 5) must be part of your overall litigation management
system. However your counsel track litigation, if at all, they must track
holds in perfect lockstep with the opening and closing of litigation files.
As noted, the obstruction of justice laws and common civil law requirements
require action when your organization is on actual or constructive notice of
legal or regulatory matters.  In short, your organization needs to act on
hold instructions well before your outside counsel gets involved.  This is
easier said than done, but it is the law.  

 

MS SharePoint and perhaps other applications your organization might already
have license to use, can be configured inexpensively using open source to
establish a collaborative platform that inside and outside counsel may
access and track litigation.  This is a very important area and you should
have no problem getting adequate support and funding to create a system that
does not require capital investment.  The key, however, remains in the
policy development training, and training lawyers is not easy.  Trust me, I
am one!

 

Best regards,

 

 

Rick Wolf

 

 

347 Mt. Pleasant Avenue

Suite 204

West Orange, NJ 07052

(973) 324-0050 (direct)

(973) 324-0052 (fax)

(201) 602-9486 (cell)

www.lexakos.com

 

 

 

 

-----Original Message-----
From: Records Management Program [mailto:[log in to unmask]] On Behalf
Of Smallcombe, Paul
Sent: Tuesday, September 18, 2007 11:59 AM
To: [log in to unmask]
Subject: Recording legal holds

 

Hello all

 

I'm looking in to designing a tool for use by our RIM and Legal

departments which records in one place all the legal holds currently in

force worldwide throughout the company.

 

I was wondering what means people out there use to record legal holds.

By this I don't mean anything fancy like the commercially available

software that tracks holds and the collection of information etc. I'm

talking about something fairly simple like a spreadsheet or database

which lists just the details of each hold.

 

If so, I'd be grateful to hear what type/extent of information is

captured, how it's displayed/made available and how it is kept updated

plus any other tips.

 

Thanks

 

Paul Smallcombe

 

 

Assistant Records Manager, Projects & Liaison

www.diageo.com

 

 

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