Building your Legal Hold Process with Code42...
Transcript of Building your Legal Hold Process with Code42...
CODE42E - B O O K
Laying a Strong Foundation:Building your Legal Hold Process with Code42 CrashPlan
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Executive Summary
Part 2: Code42 Legal Hold—A Strong FoundationPreparing for eDiscovery
Universal Truth: Quality In = Quality Out
Code42 CrashPlan with eDiscovery tools
Code42 Legal Hold: A Solid Foundation for your eDiscovery Process
Code42 Supports Four Fundamental Factors of eDiscovery
Part 1: Legal Hold—A Shifting, Shaky EnvironmentThe eDiscovery Landscape
Legal Hold in the Eyes of IT & Counsel
Increasing eDiscovery Expectations—and Stakes
The eDiscovery Process Diagram: A Best Practice Blueprint
In-House eDiscovery: A Simpler, Stronger Strategy
How to Navigate this e-BookThis e-book is split into two parts. Part one discusses eDiscovery trends, best practices, headaches and workflows. Part two discusses how you
can leverage your endpoint backup from Code42 to simplify your eDiscovery process, bring legal hold activities in-house, cut IT and counsel costs,
and build a successful litigation discovery process on a solid foundation of relevant, authentic data. Use the clickable graphic below to navigate the
book, and begin laying the foundation of your stronger eDiscovery process.
Conclusion Glossary
To return to this navigation page at any time, click the arrow in the top left-hand corner of each page.
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Executive SummaryRapid changes in technology and software, and the nearly universal shift to electronically stored
information (ESI), has made eDiscovery more complex and expensive. In a movement to simplify and
standardize their procedures—and dissolve some of the extra tensions surrounding litigation—many
organizations are bringing phases of the eDiscovery process in house, in particular legal hold.
Among other benefits, Code42 eDiscovery simplifies legal hold management. Litigation preparation can
be a large task crossing over many departments, but will consistently feature two main players: Legal
and IT. This document focuses on those two groups, and aims to enable one to see the eDiscovery
world through the point of view of one group—or the other.
CODE42 DISCOVERY If you have Code42 CrashPlan for endpoint backup,
congratulations, your organization has already
automated the collection of user data, not only
for backup but also for legal hold. The ability to
preserve in place is a function that sits on top of your
enterprise data collection and protection tool. It is
completely operated from a web application that
enables litigation support personnel to access the
Code42 platform. ITINFORMATIONTECHNOLOGY
LEGALCOUNSEL
L
See how the other half views eDiscovery, and how “IT v. Legal” can become “IT & Legal”
with the help of Code42.
Code42 is platform-
agnostic, and can be
used and managed
by any team member,
regardless of
technical training.
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Part 1: Legal HoldA Shifting, Shaky Environment
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1. http://www.alixpartners.com/en/Publications/AllArticles/tabid/635/articleType/ArticleView/articleId/687/Litigation-and-Corporate-Compliance-Survey.aspx#sthash.9e3RHjrc.EXoNCbra.dpbs
2. http://www.bizjournals.com/kansascity/news/2014/04/21/companies-face-high-cost-litigation.html#g
3. http://www.protiviti.com/en-US/Documents/POV/POV-e-discovery-Protiviti.pdf
4. http://www.slideshare.net/morrisjd1/ediscovery-infographic
5. http://www.forbes.com/sites/wlf/2014/03/06/new-corporate-survey-illustrates-burdens-of-document-preservation-and-benefits-of-proposed-reform/
of companies face litigation1
89%of companies spent71%
IN 20132
>$1M
63%eDISCOVERY:
Total cost savingsfrom proactive
IN SAVINGS PER COMPANY PER YEAR5
3%
>$1M
reduction in employee time spent on legal hold means
on litigation expenses
25%eDISCOVERYoften consumes
of the total litigation budget3
4
of companies face litigation1
89%of companies spent71%
IN 20132
>$1M
63%eDISCOVERY:
Total cost savingsfrom proactive
IN SAVINGS PER COMPANY PER YEAR5
3%
>$1M
reduction in employee time spent on legal hold means
on litigation expenses
25%eDISCOVERYoften consumes
of the total litigation budget3
4
of companies face litigation1
89%of companies spent71%
IN 20132
>$1M
63%eDISCOVERY:
Total cost savingsfrom proactive
IN SAVINGS PER COMPANY PER YEAR5
3%
>$1M
reduction in employee time spent on legal hold means
on litigation expenses
25%eDISCOVERYoften consumes
of the total litigation budget3
4
of companies face litigation1
89%of companies spent71%
IN 20132
>$1M
63%eDISCOVERY:
Total cost savingsfrom proactive
IN SAVINGS PER COMPANY PER YEAR5
3%
>$1M
reduction in employee time spent on legal hold means
on litigation expenses
25%eDISCOVERYoften consumes
of the total litigation budget3
4
of companies face litigation1
89%of companies spent71%
IN 20132
>$1M
63%eDISCOVERY:
Total cost savingsfrom proactive
IN SAVINGS PER COMPANY PER YEAR5
3%
>$1M
reduction in employee time spent on legal hold means
on litigation expenses
25%eDISCOVERYoften consumes
of the total litigation budget3
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The eDiscovery LandscapeThe modern eDiscovery landscape is shifting as justice systems
throughout the world adapt to swift technological change. Litigation
is on the rise, as is the amount of electronic evidence processed by
courts. eDiscovery is a complicated space that requires a unique skill
set. Some common best practices are followed, but it’s far from an
exact or standardized science. It is foggy, complex, time-consuming, expensive
and rife with potential for human error. As a result, most organizations maintain
a highly reactive process—addressing litigation as or after it arises, rather than
preparing for it in advance. This process is more painful, even more costly, and
never wins you favor in court.
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Legal Hold in the Eyes of IT Unless IT personnel are dedicated entirely to legal hold
processes, legal hold presents a disruption in their workday. It
is a laborious process that often requires physical collection of
employee devices or hard drives.
The sheer amount of ESI that must be preserved
during litigation results in substantial time and
cost and exposes the organization to serious
risks—including risk of accidental destruction of
data. While chief counsel is typically responsible
for a reasonable collection methodology, IT is
on the front line and must understand tools,
technology, data repositories, metadata and
chain of custody, user devices, user behaviors
and more.
Two Teams, Two PrioritiesIT prioritizes the logistics of legal hold: they’re required to
understand data repositories, server and mobile technology,
metadata, chain of custody and more.
Legal Hold in the Eyes of Counsel Before the legal hold process begins (and ideally before
litigation is threatened), counsel must understand where
information repositories exist within the company. Following
the “information governance phase,” counsel is
less concerned about collection tools and more
concerned about building a solid foundation for
their eDiscovery process.
Counsel understands the risk of sanctions for
untimely identification of custodians, delays in
implementing legal holds and omitting relevant
data sources from productions.
Counsel wants a reasonable process: they prioritize
communicating legal hold requirements to IT, rapid definition
of custodians and identification of relevant information.
LLEGAL
COUNSEL
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Increasing eDiscovery Expectations—and StakesCurrent U.S. litigation law requires that all parties must have good eDiscovery capabilities in place
before litigation starts:
FRCP Rule 26(a)(1) requires that all litigants have a solid understanding of
their data assets and that they are able to discuss all relevant, data-related
issues ahead of the initial pre-trial discovery meeting.
FRCP Rule 16(b) requires that this meeting take place within 99 days after
a legal action begins.
Courts are requiring increasingly faster production of relevant content, making responding to
eDiscovery requests in a timely manner absolutely critical. If Legal and IT teams do not have the
right collaboration tools at their disposal, the organization risks fines or sanctions, or instructions
from the court — such as adverse inference.
The Real Threat of Adverse Inference
Another important benefit of good information governance is the ability to minimize—or eliminate—
the possibility that data might not be properly identified and preserved during an eDiscovery
exercise or a regulatory audit. Evidence spoliation during a legal action, for example, can carry with
it enormous and damaging consequences. The destruction of evidence inhibits a court’s ability to
hear evidence and accurately determine the facts. An adverse inference instruction from the court
to a jury, in which the jury is instructed it may assume the party failing to present data is hiding
something, can be extremely damaging.7
5. http://www.nycommdivcompendium.com/2015/06/02/thou-shalt-not-destroy-esi-yet-another-cautionary-tale-on-the-duty-to-preserve-electronically-stored-
information-from-the-commercial-division-albany-county/
6. https://www.law.cornell.edu/rules/frcp/rule_26
7. http://www.ediscoverylaw.com/2010/11/court-imposes-adverse-inference-for-failure-to-preserve-text-messages-related-to-criminal-investigation/
In this case, HMS (Health Management Systems)
was suing several former employees, alleging the
misappropriation of strategic HMS confidential
information and trade secrets that the defendants
distributed in efforts to assist their new employer (PCG)
to compete against HMS.
Following the commencement of the suit, PCG placed
a broad litigation hold on all employees associated with
the case, advising employees to “discontinue any data
destruction.” But that wasn’t enough. HMS brought a
spoliation motion before the court alleging deletion of
relevant ESI from the defendants’ personal computers
and electronic devices. The defendants did not deny
the deletion of ESI, but raised various explanations
and excuses. Following a hearing, the court found that
a mandatory, adverse inference against two of the
three defendants was “necessary to alleviate the harm
suffered by HMS.” The defendants were also ordered
to pay HMS the costs, attorney’s fees and expenses of
the spoliation motion.5
This case highlights the risks associated with non-compliance
during the litigation discovery process. Automating legal hold
processes assures that ESI held on custodian devices cannot
be deleted intentionally or unintentionally.
HMS Holdings Corporation
ArendtVS.
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The eDiscovery Process Diagram: A Best Practice BlueprintThe eDiscovery process diagram gives you a bird’s eye view of the path a piece of electronic evidence will take from start to finish. The Electronic Discovery
Reference Model (EDRM) shown here is widely used and respected in the U. S.; it demonstrates a conceptual view of the eDiscovery process.8 According
to a RAND Corporation study, the legal and financial costs and stakes greatly increase with each chronological step in the diagram. The study found that
8% of the costs of producing electronic documents was for collection, 19% was for processing and 73% of costs were in review-related activities. This cost
expansion trend reinforces the necessity to have a careful eDiscovery plan, right from the start. Organizations that efficiently cull non-relevant documents
during the less costly collection and processing phases will incur lower costs when it’s time for the more expensive review and analysis phases.9
One direct result of poorly defined or enforced information governance is greater eDiscovery costs. Without a strong start, litigation processes will be less
efficient, resulting in the production of excessive amounts of content that must be reviewed by paralegals or attorneys down the line.
It’s all about laying a strong foundation.
InformationGovernance Identification Preservation ReviewProcessing Production PresentationCollection Analysis
8. http://www.edrm.net/resources/diagram-elements
9. http://www.rand.org/content/dam/rand/pubs/monographs/2012/RAND_MG1208.pdf
10. http://www.slideshare.net/jmancini77/arma-michigan
Est. cost/gigabyte: $910
Est. cost/gigabyte: $2,931
Est. cost/gigabyte: $13,63610
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In-House Legal Hold: A Simpler, Stronger StrategyIn many organizations, the legal hold and eDiscovery processes look a lot like the titles of litigation
cases: Outside counsel v. Inside counsel, Legal team v. Vendor, IT team v. Vendor, Legal team v. IT team,
Legal team v. “the system,” IT team v. “the system,” etc. In a movement to simplify and standardize their
procedures—and dissolve some of these extra tensions surrounding litigation—many organizations are
embracing the new best practice of bringing their eDiscovery process in-house.
Read part two to learn how you can leverage your Code42 endpoint backup—now with improved Legal
Hold capabilities—to move legal hold management in-house, and build your eDiscovery process on a
more solid foundation.
11. http://www.rand.org/content/dam/rand/pubs/monographs/2012/RAND_MG1208.pdf
12. http://www.computerworld.com/article/2516002/enterprise-applications/e-discovery-moves-in-house.html
of the costs of producing 96% 73%
OF FORTUNE 2000
One ESG survey found that
IN REVIEW COSTS.11
100
$1,364
MEGABYTES OF CONTENT eliminated during the collection phase will save
ELECTRONIC DOCUMENTSare spent on outside counsel or vendors.11 enterprises & government
agencies have a plan to bring eDiscovery in-house.12
Bringing certain early
75%11
in-house reduced the amount of material one company had to send to outside counsel for review by over
eDISCOVERY FUNCTIONS
APPLESAMSUNG
VS.
THE HIGH COST OF OUTSOURCING eDISCOVERY:An RFP requires research, analysis, scoping, collection
and prioritization of requirements, and communicating the
IT landscape to a potential supplier.
MANAGING eDISCOVERY IN-HOUSE:With Code42 CrashPlan, an admin simply authorizes
the legal hold application to enable counsel or litigation
support to select custodians and manage preservation.
RFP
Outsourced eDiscovery:Create a request for proposal, a discovery plan requires someone to research analyze and scope the project, collect and prioritize requirements and understand and communicate the IT landscape to a potential supplier.
RFP
Outsourced eDiscovery:Create a request for proposal, a discovery plan requires someone to research analyze and scope the project, collect and prioritize requirements and understand and communicate the IT landscape to a potential supplier.
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Part 2: Code42 Legal HoldA Strong Foundation
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Preparing for eDiscovery As every IT team member knows, the power, potential, value and life of an organization is its data.
Every year, big data grows bigger, and it’s not living neat and tidy in the center of the system. It
lives on endpoint devices that are mobile, geographically dispersed and not always connected to
network servers.
When employee devices are backed up with Code42 CrashPlan, IT has visibility—via historical
archive—of every version of every file, wherever employees are stationed. IT can facilitate counsel
and/or litigation support personnel by giving access to the legal hold web app from the console.
Once enabled, counsel can choose custodians, define and manage preservation policies, and
select and collect documents for the second phase of eDiscovery.
Return to all legal holds
Name Date added CollectionStatus
Choose status: Active
Total Quality Litigation
CustodiansDetails Activity
Created by: Joseph Wang
Status: ACTIVEDate created: 5/12/15
AdministrationLegal Hold
Dwight Schrute
George Lundy
Pauline Winston
Peter Henninger
Joseph A. Lyons
Joyce J. Gilligan
Efrain M. Harper
Lorraine M. Daly
Patrick Housman
Shirley Kendrick
Spencer Young
Malcolm W. Perry
Barton Macklin
James Borum
Active
Active
Active
Active
Active
Active
Active
Active
Active
Active
Active
Active
Active
Active
5/2/15
5/2/15
4/19/15
4/19/15
5/2/15
5/2/15
5/2/15
4/19/15
4/19/15
5/2/15
4/19/15
5/2/15
4/19/15
4/19/15
Get Files
Get Files
Get Files
Get Files
Get Files
Get Files
Get Files
Get Files
Get Files
Get Files
Get Files
Get Files
Get Files
Get Files
Get files...DoneRestore Target: Zip file
CODE42 LEGAL HOLD:
• Works across multiple operating systems—including
Windows, Mac and Linux—giving IT full visibility of all
user data in a single dashboard.
• Supports very rich policy management to
ensure that technology corroborates information
governance policies.
• Offers feature parity across platforms with a single
agent for open file handling.
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Universal Truth: Quality In = Quality OutEndpoint backup across the enterprise is the foundation upon which disaster recovery
plans, compliance and remediation strategies, streamlined data migration processes
and other business functions are built—including proactive legal hold.
The Code42 CrashPlan legal hold module extends the utility of your
enterprise data platform to support a legal hold process that is
thorough, relevant and meticulously documented. Your process
contributes to your ability to win favor in court and avoid instructions
or sanctions resulting from spoilation.
Data Mining, Modeling and
Analysis
LegalHold
Future Compatible
Predictive Risk Analysis
Disaster Recovery and Business Continuity
Data Security
CAPTURE AND STORE ALL END-USER DATA ON THE CODE42 PLATFORM
Data Migration
Vital Evidence
Legal Hold Process
Forensics
When your eDiscovery process is built on a solid foundation, so is your case.
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Code42 CrashPlan with eDiscovery ToolsEndpoint backup can support a strong information management policy, and is
the foundation of a proactive and reasonable approach to data management
and litigation preparation.
Code42’s integrated legal hold module is intended for use by technical or
non-technical teams. This module enables eDiscovery teams to centrally
control policies, profiles, permissions, user accounts and groups in real time.
In the legal hold application, a legal hold is applied when the lawyer (or legal
technologist) selects the custodian and preservation policies, including a data
destination where files are stored. The console activities do not disrupt a
custodian’s work.
Code42 legal hold is a reasonable, repeatable process that preserves
custodian data in an onsite or offsite system. The data is only collected/restored
for processing if the legal team is unable to resolve the litigation. Preserving in
place can result in significant cost savings if an early settlement is reached.
Code42 legal hold:
• Provides a silent, continuous, unlimited and unified solution
• Places legal holds without user disruption or file duplication
• Allows access to audit trails and file metadata
• Provides a single role-based admin interface
• Integrates with eDiscovery processing software
Return to all legal holds
Total Quality Litigation
Preservation Policy
Reference
Description
Custodians ActivityDetails
Created by: Joseph Wang
Status: ACTIVEDate created: 5/12/15
General Backup:
External Reference:
Notes:
Description:
Rename…
Adjust backup set settings
No legal hold description yet Edit
Deactivate hold
Remove hold
EditNo reference ID yet
No notes entered yet
File Selection:
Filename Exclusions:
Frequency and Versions:
Advanced Settings:
Choose which files to include and exclude
Choose which filenames to include and exclude
Versioning controls how frequently file changes are captured and kept over time
Set and adjust additional settings
User Profile Backup: User profile and state settings to capture
AdministrationLegal Hold
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Identification: The
Code42 platform makes
it easy for a single admin
to manage all legal holds
from a unified console.
Information Governance: Code42
CrashPlan enables an accountable
framework for information
governance of end-user data. The
Code42 legal hold application is
built atop its robust endpoint data
protection and security platform—
which backs up every version of
every file automatically and enables
management of end-user data via a
single powerful console.
InformationGovernance Identification Preservation ReviewProcessing Production PresentationCollection Analysis
Preservation: Through the
legal hold module, litigation
support specialists select
custodians, assign parameters
and policies of the legal hold
data set, and audit processes
throughout. Custodians can be
placed in multiple legal holds,
each with unique policies.
Collection: The self-service
function is administered
through the legal hold
web app. Here, files and
associated metadata are
restored in native formats
to maintain auditable chain
of custody.
Code42 Legal Hold: A Solid Foundation for eDiscovery ProcessCode42 CrashPlan provides the solid endpoint backup that’s vital to a robust information governance policy. The Code42 legal hold
application provides litigation team members with a strong collaboration tool providing visibility, management and legal hold capabilities for the
identification, preservation and collection phases of eDiscovery.
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Processing: Following
collection, native files
are prepared to be
loaded into a document
review platform.
Production: Documents
are turned over to
opposing counsel
based on agreed-upon
specifications and
governed by the rules of
procedure. Documents
can be produced either
as native files or in a
standardized format (such
as PDF or TIFF), alongside
metadata.
InformationGovernance Identification Preservation ReviewProcessing Production PresentationCollection Analysis
Review: During the review
phase, documents are
reviewed by counsel for
responsiveness to discovery
requests and for privilege.
Analysis: At this point, the
scope of the eDiscovery
project is set, and the files
are analyzed by counsel
for use in building an
argument.
Presentation: In the
final stage, evidence is
presented to a judge in
court.
Building Success on a Solid FoundationCode42 integrates with eDiscovery analysis products, ushering your relevant data—collected with its integrity and authenticity intact—into the
processing, review, analysis, production and presentation phases. Quality in = quality out.
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Code42 Supports Four Fundamental Factors of eDiscoveryIn the United States judicial system, an organization’s eDiscovery process is judged based on reasonableness. This is
a largely subjective quality, or rather a balance of many qualities, but consistently includes the following factors:
The duty to preserve evidence prohibits destruction or
alteration of electronically stored information (ESI).
When preserved data is narrowed down, the process is
also referred to as culling.
It is incumbent upon attorneys to periodically notify custodians that a legal hold has been placed on their
devices; custodian compliance needs to be monitored.
Spoliation sanctions have increased 271% since 2005. The most common
misconduct resulting in sanctions was the failure to preserve.12
1 Duty to Preserve
Code42 CrashPlan supports the duty to
preserve through continuous, automatic
collection of every version of every
file continuously and automatically—
preventing loss, deletion or spoliation
of documents.
2 Scope
For defining the amount of information
that will undergo eDiscovery, the Code42
platform supports robust search of
people, past, present and deleted files,
topics and devices. It also provides the
ability to see what data has been saved
in third-party clouds (such as Dropbox or
OneDrive) or removed via external drives
(such as USB drives).
3Chain of Custody
As relevant information progresses
through the eDiscovery workflow, it
moves from place to place, is seen by
new people, and will eventually leave the
organization for review and processing.
Code42 CrashPlan supports chain of
custody with audit trails and metadata
log files.
4Data Management Philosophy
The Code42 platform enables the
organization to:
• Set retention policies individually, by group or geographical location
• Determine where to store custodian data• Select which data is backed up and
preserved through an extensible rule set• Perform legal hold on custodian endpoints
regardless of operating system platform (i.e., Windows, Mac and Linux)
12. http://www.abajournal.com/files/DukeLaw.pdf
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ConclusionIn order to strengthen processes, avoid spoliation fines, simplify complexities and control costs, innovative enterprises are moving
vital parts of their eDiscovery processes in-house. Those with Code42 CrashPlan can do this with ease, using its legal hold
module, which sits on top of their continuous endpoint backup platform. The legal hold module enables legal teams to create and
manage all legal holds through a single application.
Endpoint backup is a secure and solid foundation for managing and protecting end-user data. In the event of litigation, you can
extend this strength to your eDiscovery process.
When your process is built on a solid foundation, so is your case.
To learn more about the legal hold feature of Code42 CrashPlan, contact your sales representative or visit code42.com/contact.
CODE42
Code42 is a global enterprise SaaS provider of endpoint data protection and security to more than 37,000 organizations, including the most recognized brands in business and education. Our highly secure
cloud solutions enable IT and security teams to limit risk, meet data privacy regulations and recover from data loss--no matter the cause.
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Glossary
Adverse Inference A legal ruling, resulting from the absence of requested evidence, in which the jury is instructed that it may assume the party failing to present data is hiding something.
Chain of CustodyThe documentation of the path a piece of evidence traveled before being presented in court; an audit of who made, saw, touched, altered evidence and why.
Collect and PreserveA legal hold method where relevant files are collected and placed in a new location when it is practical to do so.
CustodianThe creator or holder of a piece of evidence.
eDiscoveryThe process of identifying, preserving, collecting, processing, reviewing, analyzing, producing and presenting electronically stored information associated with legal proceedings.
ESIElectronically Stored Information; an acronym referring to any evidence that exists or existed in digital form.
Legal HoldAn action taken by an organization to preserve relevant information; must be performed when litigation is anticipated.
Information GovernanceThe set of structures, policies, procedures, processes, controls and general philosophy implemented by an organization to manage the information it creates and uses.
LitigationA lawsuit; the proceedings initiated between two or more opposing parties to enforce or defend a legal right in court.
Preserve in PlaceA legal hold method where relevant files are immediately “locked down” in the same location in which they are found—workstations, laptops, file shares, information repositories, etc.
ReasonablenessA judgment determined by the court regarding the quality of the eDiscovery and information governance policies of an organization.
SanctionsPenalties for disobeying or disregarding a rule of law; fines, restrictions, or other deterrents.
SpoliationThe deletion, misplacement or alteration of evidence.