It is a constant in life that, no matter how perfect, there is always an exception to every rule. This is true in your Information Governance program as well.We spent a lot of time last year discussing how to build an effective program that can manage information throughout the lifecycle from creation to final disposition. We even discussed the need to ensure you have a defensible disposition process to prove you had a program that consistently worked in Court if needed. However there are times when you need to halt that very process and preserve your information assets beyond their stated retention period – litigation is one of those exceptions, although there may be others. Like everything else, you need to plan for this contingency.
These events are know as Disposition Holds. A disposition hold can occur for many reasons, a Legal Hold is probably the best known because they get the most publicity and have many regulations around them. In the Untied States a legal hold is required if there is a reasonable expectation of pending litigation. That is an important distinction that is worth looking over again: If your legal counsel believes there may be litigation on some matter in the offing they are required to preserve and protect all relevant information around that matter or there could be legal repercussions for not doing so. This is one reason why legal holds are so important.
So lets say that your legal counsel has such an event, here are the basic steps they will take in order to meet the potential requirements of a Disposition Hold:
- The legal counsel determines those individuals and / or departments that are affected by the pending matter.
- They will then draft a letter to those individuals and / or departments that details the matter and what information needs to be gathered and preserved.
- Those individuals and / or departments should be required to acknowledge receipt of this letter to create a traceable process.
- The individuals and / or departments gather the information and secure it in a location that ensures the information is protected while limiting access to it unless approved by the legal counsel.
The above process covers the hardcopy material, but most of us work in the electronic world. In this case the legal counsel needs to work with the IT department to collect and secure the information covered in the scope of the pending matter using the same documented process outlined above. The difference with electronic information is that it needs to be secured in such a way that the underlying metadata of the files remains intact. Failure to do so could be considered spoliation which can result in severe legal penalties. All of this information would be removed from the disposition process until it is released by the legal counsel. Given the current state of the legal system, this could be quite awhile. Once the matter is concluded the process starts all over again to document the release of the information back into the normal disposition process.
As I said before there could be many reasons to implement a Disposition Hold, a legal hold is just the most common. Regardless of the reason, it is important to fully document the reason and the process used to implement the Disposition Hold to ensure the integrity of the Information Governance program. There will always be exceptions, but they need to be accounted and planned for in order to have a defensible program as well as having a program that can be easily followed by your organization. Having a documented process is the key to having it accepted and implemented when it is needed. Next month we will talk about automating the information governance program because having a machine do a lot of the work makes it easier to implement as well!
See you next time!