Presidential Records Act Provides Guidance to Understanding How to Preserve Documents for Today's Legal Holds

In 1978 the Presidential Records Act (PRA) was passed which fundamentally changed the landscape of Presidential records by moving them from a classification of personal information to the public domain. The PRA is explicit in describing that retention of records created by the President of the United States as well as the Vice President is the responsibility of the President. The PRA guides the President in how records should be handled and guides the steps in the proper destruction of records and how they are retained to comply with this federal statute.
 
This "hold" on the records of the President is similar to a "Legal Hold" companies often face in relationship to the Federal Rules of Civil Procedure, and underscores the importance of knowing when to hold data whether it is for litigation, compliance, or even a Presidential record. An August 2008 study showed several areas of concern regarding eDiscovery, as well as a continuing lag in understanding electronic documents and what needs to be retained for legal purposes. The study cited the following:

• Only 33% of respondents stated they were knowledgeable in what documents should be retained
• 38% of respondents have informal policies and procedures for retention and archiving of electronic documents
• 71% of companies responding stated their company did not provide training as it pertained to eDiscovery

These statistics are a reminder of how much education is needed for companies to understand eDiscovery and the issue of legal hold. A proper approach to legal hold is paramount for compliance with FRCP, and is central to the development of a records management policy and a move towards a proactive response to legal hold requests.

Legal Hold is quite simply preserving all relevant information when litigation or potential litigation is anticipated. That is certainly a simplified outlook as it pertains to electronic evidence as electronic documents are mostly decentralized across storage systems, laptops, desktops, email, and servers to name a few. In short, it is a lot easier said than done.
 
Responding to an eDiscovery request is always a challenge, but with the proper preparation companies can ease this burden. Understanding how to prepare for a legal hold is the first step in ensuring your company meets its obligations under FRCP. Outside a company's normal response to statutory or regulatory requirements to preserve documents, some areas that can trigger a legal hold preservation of documents for a company are:

• Potential or threatened litigation or investigation is anticipated
• If a preservation letter from opposing counsel or agency is received
• Service of a complaint, discovery request, or court order is received.

If one of the above occurs then a legal hold should be triggered and the following needs to occur:

• Routine destruction of documents related to the litigation should stop
• The company's record management process should guide by records management policy
• The records management policy should spell out clear guidelines and processes to protect relevant documents and ensure all key personnel identified in the policy as necessary to protecting information are engaged in the process. 

As processes are being determined companies quickly realize electronic documents can be elusive in an organization due to their unstructured nature and the tendency to be dispersed across the organization. Automating the process of eDiscovery with products such as Kazeon's Information Server can provide an end-to-end legal hold solution that simplifies the difficult process of identifying and producing relevant information in a legal hold scenario.

One of the tenants of the PRA is that the President "shall take all such steps necessary to assure that the activities, deliberations, decisions, and policies that reflects the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records pursuant to the requirements of this section and other provisions of law." This is to be done through the implementation of records management controls. So, it stands that if the President is mandated to implement a records management program to hold documents then companies will also be well served by implementing their own records management policy.
 
Understanding and preparing for a legal hold can be a complicated and daunting task, but one that companies must prepare to face. As companies continue to struggle with how best to deal with FRCP, it is imperative that all phases of the eDiscovery and litigation process are fully understood and a process defined on how to respond when a triggering event occurs. After all, these processes are critical in ensuring the proper response to a legal hold, just as the President must implement processes for PRA. As we continue with this topic, we will take a deeper look into legal hold and provide further information on how to approach this important topic in a forthcoming blog entry.l