What is a Legal Hold?
A legal hold is a process within the University that preserves by directive all forms of relevant records (paper and electronic) when litigation is reasonably anticipated, which may occur several years before any claim or court action is started. For the purposes of a legal hold, litigation can be reasonably anticipated when certain 'triggering events' occur.
Once litigation is reasonably anticipated, the University is obligated to suspend routine document retention and destruction policies and implement a legal hold to ensure that relevant records are maintained intact from that point forward.
A legal hold creates a duty to retain all potentially relevant records then in existence, as well as all relevant records created thereafter.
Who issues Legal Hold notices?
Legal hold notices at the University are issued by General Counsel.
What are some examples of 'triggering events'?
- a summons or subpoena
- service of a statement of claim or civil claim
- a demand letter from a lawyer
- an event involving University personnel or occurring on campus that could result in litigation
- notice from an administrative tribunal of a complaint
What should I do if I see a possible triggering event?
Notify your Supervisor and General Counsel. Determining whether something is a triggering event is fact-intensive and is best made by individuals at the University who are experienced with the legal process and can properly analyze whether litigation is reasonably anticipated.
DO NOT DELETE OR DESTROY ANYTHING: Do not delete or destroy any documents/records in your possession which may be relevant to the matter. Additionally, do not delete or destroy any new documents/records that are received or created which might relate to the matter.
Why is compliance with a legal hold important?
Compliance with a legal hold is important because if the University destroys (even accidentally) a relevant document after the University knew or should have know about the possibility of litigation, the University's case may be significantly compromised. The court may deny certain testimony that supports the University or draw an adverse inference (meaning that the court could infer that the lost or destroyed electronic record supports the opposing party's case).
How will General Counsel notify me of a legal hold?
General Counsel will send you a legal hold notice, which is a confidential, solicitor-client communication. The notice will explain the legal hold and the fact that you may have documents, information, and/or records that need to be preserved. You will be given a deadline, usually ten (10) calendar days from the date of the notice, to respond in accordance with the directions in the notice.
How do I preserve relevant information?
Email: Create a folder inside your mailbox that will contain copies of all relevant emails. The folder should include all sent, received, drafted and deleted emails that exist at the time of the legal holds.
Electronic Documents: Create a folder on your personal network (P: drive) folder and place a copy of all relevant documents inside that folder. Access to that folder shoudl be restricted to you. The folder should be on a network so that data may be retrieved should something happen to your computer.
Paper Documents: Scan the documents and save them to your personal network folder described above.
Personal Computer: Although you should do all work-related projects on your work computer, if you have worked on your personal computer then relevant files on your personal computer may be subject to the legal hold.
If you have any questions about whether a document is relevant or related to the event, you should preserve the document.
Can I just keep printed versions of the documents?
No. Preserving a printed version of all correspondence and documents may not suffice because electronic versions often provide information such a track changes and other metadata that may not appear on the printed version of these documents. You should store any related information in a separate file on your computer whille you wait for General Counsel to determine whether collection of the data is necessary. Emails and electronic versions of documents should be kept if they are relevant to the legal hold.
How long am I required to preserve the documents?
The length of time will vary and will depend on the nature of the legal hold. Typically, a legal hold remains in effect from the time it is issued until it is released. General Counsel will release the legal hold once the matter in question is resolved and will inform you of this by way of written notice.
A legal hold release does not mean that you may destroy or delete the records you had been preserving. A legal hold only suspends the operation of the University's record retention and disposition schedule, it does not replace it. This means that your records, once released from legal hold, revert back to the University's usual rules for retention and disposition under the Records Management Policy.
Where can I find more information about Legal Holds at the University?
More information about legal holds at the University is found in the accompanying FAQ section as well as in the University's Legal Holds http:www.uleth.ca/policy/legal-holds-university-records.