By creating a “duty to preserve” electronically stored information (ESI) in the discovery phase of a legal matter, the new Federal Rules of Civil Procedure (FRCP) forced us to rethink how document retention policies are applied to electronic files. 

At the heart of these discussions is the crucial execution of litigation holds. Much has been written about case law impacting litigation holds, but far less attention has been given to the latest trends in how successful organizations are managing the litigation holds process. 

There is an obvious legal trend presently emerging — the courts are placing an unprecedented level of scrutiny on litigation hold procedures and are not afraid to issue serious sanctions when litigation holds are not ordered, executed and managed properly. Another growing management trend with litigation holds is the movement toward the deployment of automated systems that improve the consistency of turnaround times with issuing notices. 

The ultimate goal here is to put in place a defensible audit trail as it relates to litigation holds, one that will hold up in court if the matter goes to trial. There are several possible frameworks for how to accomplish that goal, but it seems certain that the common thread will be a dedication to collaboration between in-house and outside counsel. 

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