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Custodial Hold: Trust But Verify, by Craig Ball, Ball In Your Court Blog


Please click on the link to the Pension Committee opinion (you’ll see it in Craig Ball’s article). You’re getting two for one here. Besides, when it’s Craig Ball, you know it’s going to be good. -CCE

Long before the Pension Committee opinion, my dear friend and revered colleague, Browning Marean, presciently observed that the ability to frame and implement a legal hold would prove an essential lawyer skill.  Browning understood, as many lawyers are only now coming to appreciate, that ‘legal hold’ is more than just a communique.  It’s a multi-pronged, organic process that must be tailored to the needs of the case like a fine suit of clothes.  For all the sensible emphasis on use of a repeatable process, the most successful and cost-effective legal holds demonstrate a bespoke character from the practiced hand of an awake, aware and able attorney.

Unfortunately, that deliberate, evolving character is one of the two things that people hate most about legal holds (the other being the cost).  They want legal hold to be a checklist, a form letter, a tool–all of which have value, but none of which suffice, individually or collectively, to forestall the need for a capable person who understands the ESI environment and is accountable for getting the legal hold right.  It’s a balancing act; one maximizing the retention of relevant, material, non-duplicative information while minimizing the cost, complexity and business disruption attendant to meeting one’s legal responsibilities.  Achieving balance means you can’t choose one or the other, you need both. . . .