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Caveats to consider when opting In-Place Preservation for Legal Hold

Published On : July 17, 2023
In-Place Preservation for Legal Hold in eDiscovery

We have heard a lot about In-Place preservation being the most proactive method to ensure you never fail to adhere to legal hold orders. Unlike the traditional legal hold, In Place Legal Hold is predicted to be more efficient. In-Place preservation sounds wonderful as you don’t have to incur the collection and storage costs until necessary. But very few discuss the practical implications of adopting In-Place Legal Hold for the eDiscovery needs.

What is In-place Preservation?

In the context of an in-place legal or litigation hold, organizations implement technical measures to prevent the alteration or deletion of relevant data in its original location instead of physically collecting and moving data to a separate storage location. 

This approach allows organizations to avoid disrupting normal business operations and potentially reduce data collection and storage costs

However, implementing an in-place legal hold has certain caveats and considerations that organizations should be aware of. Here are some common caveats associated with in-place legal holds:

Preservation Risks

While in-place legal holds aim to preserve data in its original location, inherent risks are involved. For example, accidental deletion, intentional tampering, or technical failures such as connectivity issues could still result in losing or altering relevant data. Organizations must carefully assess their technical measures’ effectiveness and reliability to mitigate these risks.

System Complexity

In-place legal holds often require coordinating various technical systems, such as email servers, document management systems, and content collaboration platforms. Managing these systems and ensuring consistent application of legal hold measures across different platforms can be complex and may require specialized expertise.

Metadata Management

Metadata, such as file creation dates, author information, or system logs, play a crucial role in maintaining the integrity and context of data. However, preserving metadata accurately during an in-place legal hold can be challenging. Organizations should ensure their preservation mechanisms account for metadata and prevent its inadvertent modification or loss.

Data Overwrite

In certain circumstances where cloud data is involved, data may be automatically overwritten or modified by normal business operations, system updates, or backup processes. Organizations should carefully evaluate the risks associated with data overwrite and implement measures to prevent the loss of relevant information during the legal hold.

Data Accessibility and Organization

As the volume of data grows within an organization, locating and accessing specific relevant information during the legal hold period can become challenging. It is crucial to have robust data management practices, such as effective data indexing, search capabilities, and clear identification of custodians and their responsibilities.

Employee Cooperation and Awareness

In-place preservation heavily relies on the cooperation and awareness of employees who are custodians of potentially relevant data. Organizations should ensure that employees understand their obligations, provide clear instructions, and have mechanisms to address non-compliance or lack of awareness.

Legal and Regulatory Compliance

In-place preservation should align with applicable legal and regulatory requirements specific to the jurisdiction and industry. Organizations should consult legal professionals to ensure compliance with relevant laws and regulations while implementing legal holds.

Monitoring and Legal Holds Management

In the current age of litigation, custodians’ data is not limited to email or file-sharing, or collaboration platforms; it could be cell phone data, social media data, or IM (Instant Messaging) applications like WhatsApp, Snapchat, etc.

These applications and devices may not support In-place preservation at the moment. In this scenario, the legal team has to rely on conventional legal holds technique for preserving data from all the sources that don’t support in-place preservation. This could lead to a sailing on two boats situation for legal teams.

Wrapping up

It is important for organizations to carefully evaluate these caveats and develop comprehensive strategies to address them when implementing in-place legal holds. Seeking guidance from legal and technology experts can help ensure the effectiveness and defensibility of the preservation process.

Author

Ravi Thakor
Ravi is a senior project manager at Knovos, handling clients' portfolios in eDiscovery and ADR space. He holds BSL.LLB degree from the prestigious Pune University. Later, he went to the UK to pursue a Business & Commercial Law postgraduate from Liverpool John Moores University, London. He has experience working as a Paralegal with a UK-based Law Firm and Litigation Associate with an LPO.