A legal hold has been initiated, and you’ve identified the relevant stakeholders and data sources. Now, it’s time to identify, notify, and manage your custodians.
Note: This guide to managing custodians in the legal hold process is a part of our larger Legal Hold Playbook. You can download the full playbook here.
Identifying custodians in a legal hold scenario
In a legal hold scenario, custodians are individuals who may have evidence related to the triggering event.
Once you've completed your legal hold preparation checklist, it's time to build your list of custodians.
This is key for several reasons:
1. In most cases, a legal hold notice must be sent to each custodian to inform them of their obligations (e.g., obligations to keep and not delete all emails, data, etc.).
The exception here is for silent holds. These may be issued for an internal investigation, and require that an employee’s data is held but that the individual not be notified – so as to not tip them off that they are the subject of an investigation.
2. Your IT team will require a list of the individuals that need data held in place or copied to a secure location.
This helps the IT department know where to direct their efforts (e.g., if any hardware imaging or expanded retention policies need to be put into place on an individual basis).
💡Pro tip: To save time, consider keeping a standing list of custodians who may frequently be on hold due to their position in your company. (For example, company directors are nearly always subject to one or more legal holds.)
As part of identifying custodians, you’ll need to pinpoint the sources those custodians use so you know which sources need to be preserved. Think broadly — most employees use applications beyond email that may need to be preserved.
Keep track of which sources can be held automatically (via API integration) and which require a hold to be set manually. Sources that require a manual hold may require additional coordination with IT.
Consider: Manual hold through IT, or in-place preservation? Learn the difference.
Creating legal hold notices
Custodians need to be given a legal hold notice to inform them of their obligations.
Legal hold notices provide an opportunity to give custodians any additional information related to the anticipated legal action, such as:
- Custodians’ data management responsibilities, such as what to keep and how long to keep it for.
- Who they may or may not speak to about the action.
- Definitions of what materials may need to be preserved.
- Information about the action itself.
While every matter is different, some information sources are common. Save time by making basic matter notice templates that you can edit to insert unique information before sending to matter custodians.
At a minimum, consider creating the following notices:
- Notices by event type
- Notices by lawsuit type
- Notices by jurisdiction
- Notices addressing privilege clawbacks
- Notices addressing internal investigations
- Notices addressing employee terminations
- Notices reminding custodians periodically of their obligations
- Notices releasing custodians from their obligations
💡Pro tip: Don’t reinvent the wheel. Use highlighting to determine what information may need to be changed per matter.
Or, even better, use legal hold software that makes use of tagging and metadata. Tags create placeholders that insert basic matter information, reducing the amount of time needed to edit matter notices with unique information.
Sending legal hold notices to custodians
Sending legal hold notices can be done via a manual process or automatically:
A manual process involves logging in and sending the notice using your email.
An automated process uses a tool integrated with your active directory so you can email custodians all at once without having to track down email addresses.
If you’re using a manual process, make sure you’re tracking all information related to the sent notice, including:
- Which custodian(s) received the notice
- The date the notice was sent
- The date the custodian acknowledged the response (if applicable)
- When the next reminder needs to go out to each custodian
Consider: How will you handle custodians who are no longer employed by the company? Make sure you know who they are, and inform IT about the hold requirements for those individuals.
Questionnaires: a powerful legal hold tool
Questionnaires are powerful tools to gather information from your custodians. This can range from the types of technology they use to whether they are aware of any additional employees you may want to consider adding as custodians.
💡Pro tip: Develop a list of questions custodians should answer when they receive a legal hold notice. You won’t need to use every question in every matter – but developing a repository of both standard and unique questions ensures that you are prepared for any situation.
Requiring and tracking custodian acknowledgements
In the event that your legal hold process is called into question, you may need to show that you have made reasonable efforts to comply with your preservation compliance obligations.
Most commonly, this is done by requiring custodians to acknowledge receipt of the legal hold notice.
Develop a workflow for how your custodians can acknowledge receipt of their notice. Do you want them to simply reply to the notice and indicate acknowledgement? Or is your process more complicated?
Whatever the method, it is important that you be consistent. Stick to your workflow so that custodians learn what is expected of them and can comply accordingly.
Tracking custodian acknowledgments
Tracking acknowledgements is extremely important – both to show you have made best efforts to inform custodians, and as a way to determine which custodians may require more follow-up.
Your process may be manual or automated:
A manual process involves custodians contacting the legal department using the methods defined in the legal hold notice and affirmatively stating that they received and read the notice. These acknowledgments will need to be tracked both by printing or saving the acknowledgments and by logging the acknowledgments in a centralized tracker.
An automated process is much simpler. It allows custodians to acknowledge with a simple click of a button, and it tracks these acknowledgments for you.
As custodians have ongoing obligations for the duration of their attachment to a matter, you must ensure the notices are continuously available to each custodian.
💡Pro tip: Keep a repository of notices available so that the custodians do not have to rely on their email to ensure they are up to date on obligations.
🚩Warning: Custodians should not have access to all matter notices. Some will not apply to them, and may contain information that they should not be privy to. When developing your repository of notices, make sure you consider accessibility and how to limit custodian access to only those notices that apply to them
Sending automated reminders to custodians
In an ideal world, custodians would receive notices, immediately use whichever method you have laid out to acknowledge receipt, commit the contents to memory, and continuously remind themselves of their obligations under each and every legal hold notice they’ve received.
A beautiful dream.
In the real world, custodians are busy – and human.
They may receive hundreds of emails a day and miss the legal hold notice. Or ignore their emails. Or read and have every intention of acknowledging them later, only to forget before they have a chance to follow through.
More challenging still, individual matters can last for years. In that time, custodians may forget they’re on hold – or assume that a matter has been resolved and that they’re free from their obligations.
In addition to designing a workflow that custodians can use to acknowledge holds, you will need to develop a workflow to follow up with them and get that acknowledgment if – or when – a custodian does not acknowledge a legal hold notice in a timely fashion.
For each notice, you will need to keep track of who has yet to acknowledge and set a timeline by which you send that custodian reminders to acknowledge receipt of their obligations.
You will then need to stick to that timeline. Deviations invite errors and the potential for custodians to slip through the cracks.
Like the other steps in the hold process, this process can be manual or automated:
A manual process involves tracking notice sent dates in a centralized tracker, determining the date on which any unresponsive custodians should be reminded to acknowledge, reaching out to the custodian at the appropriate time with a reminder, and repeating the process until the custodian has fulfilled the acknowledgment request.
An automated process allows you to set defined intervals between custodian reminders. This way, the system handles the heavy lifting of emailing the custodian a reminder and tracking their acknowledgment status.
Remember, acknowledgment reminders are not the only reminders you should be sending your custodians. At a set duration, you should consider sending your custodians a global reminder about the matters on which they remain on hold and of their obligations under each matter.
💡Pro tip: Have a plan in place in the event a custodian remains unresponsive for a set amount of time. Whom do you escalate to? What method do you use?
Tracking and auditing custodian process activity
Remember, in the event your company’s legal hold process is called into question, you will need to be able to show that you have done your best to comply with all legal hold obligations under applicable law.
This requires keeping an audit log of all activity related to a matter, including:
- Custodian selection
- Custodian type
- Types of sources on hold and date(s) those sources were held
- Notice creation
- Edits and reviews done on each notice
- Notice sent date and content
- Dates on which custodians acknowledged their legal hold notices
- Dates of any reminders
- Records of any escalation
- Dates on which custodians are released from their obligations
This is a famously tedious task to perform manually. Consider legal hold software that will automate and keep these records for you.
Manage legal hold custodians with DISCO
Exhausted by the thought of manually tracking legal hold notices and custodian acknowledgements in a spreadsheet? DISCO’s got you covered.
DISCO Hold is an easy-to-use enterprise legal hold platform that automates the manual work necessary to comply with preservation requirements – empowering legal teams to preserve data, notify custodians, track holds with a defensible audit trail, and collect data, all from a single interface.