Litigation Hold Implementation and Management

What do records management and document retention policies and programs encompass?

Effective records management and document retention policies and programs share three essential features: (1) systematically creating, storing, and disposing of records; (2) adhering to legal requirements; and (3) enhancing operational efficiency. In addition, strong records management ensures that businesses comply with relevant regulations and can promptly access crucial information when necessary.

Imagine a Florida business experiencing rapid growth, leading to a surge in paperwork and electronic records. To boost operational efficiency and legal compliance, the company could implement a records management policy specifying which documents to retain, the duration of retention, and the method of secure disposal. By doing so, the business streamlines its operations while ensuring compliance with pertinent Florida and federal laws.

Need to review and improve your records management and document retention practices? Schedule your consultation today with a top records management and document retention attorney.

Which laws, rules, and regulations apply to records management and document retention policies and programs in Florida?

Various laws and regulations govern records management and document retention policies and programs in Florida. Key among them is Florida’s Public Records Act (Chapter 119), which outlines public records requirements for businesses operating in the state. In addition, Florida’s General Records Schedule GS1-SL offers guidelines on record retention periods and disposal procedures for state and local government entities.

Businesses operating in regulated industries must also comply with federal records management laws, such as the Health Insurance Portability and Accountability Act (HIPAA) for healthcare organizations and the Sarbanes-Oxley Act (SOX) for publicly traded companies. Adherence to these laws ensures that businesses maintain proper records management and document retention policies and programs, promoting a seamless workflow and legal compliance.

How does litigation hold implementation and management connect to records management and document retention?

Litigation hold implementation and management refers to the process of preserving relevant documents and records when a business reasonably anticipates litigation. Under both Florida and federal law businesses have a duty to preserve electronically stored information (ESI) that may be relevant to the litigation. This duty applies to records management and document retention, as businesses must ensure that their policies and programs effectively address litigation hold requirements.

For example, a Florida business may face a wrongful termination lawsuit, and in response, they must implement a litigation hold to preserve all relevant emails, performance evaluations, and other documentation. Failure to do so may result in spoliation sanctions under Florida and federal law.

How do poor records management and document retention policies and programs lead to business risk exposure?

Ineffective policies and programs commonly lead to litigation regarding the following issues:

• Non-compliance with regulatory requirements: Failing to comply with federal, state, or industry-specific regulations, such as HIPAA or SOX, can lead to fines, penalties, and reputational damage.
• Difficulty responding to legal requests: Inefficient records management can hinder a business’s ability to locate and produce documents during litigation, audits, or investigations, potentially resulting in adverse legal outcomes or increased costs.
• Data breaches and privacy violations: Inadequate security measures or improper disposal of records may expose sensitive information, potentially leading to data breaches, identity theft, and violations of privacy laws.
• Loss of critical business information: Poor records management can result in the loss or misplacement of essential documents, impacting business operations, decision-making, and long-term viability.
• Increased storage and retrieval costs: Inefficient records management may lead to excessive storage expenses and time-consuming document retrieval processes, reducing overall business efficiency.
• Inability to defend intellectual property rights: Inadequate documentation and record-keeping can compromise a business’s ability to protect and enforce its intellectual property rights, such as patents, trademarks, or copyrights.

To determine whether your unique situation may necessitate litigation or another form of specialized advocacy, please contact our office to set up your initial consultation.

What are effective measures to implement and manage litigation holds, and how do businesses strategically benefit?

Counsel should consider the following to protect their clients:

• Develop a litigation hold policy: A clear and comprehensive policy helps ensure proper preservation of relevant documents and mitigates the risk of spoliation sanctions.
• Identify key players and data sources: Legal counsel should work with the client to determine who may possess relevant information and where it may be stored.
• Notify relevant employees: Inform employees of their responsibilities to preserve documents and suspend any document destruction policies.
• Monitor compliance: Regularly check that employees are adhering to the litigation hold policy and update the hold as necessary.

Strategic benefits include:

• Reduced risk of sanctions: Proper implementation helps avoid penalties for spoliation of evidence.
• Streamlined discovery process: Effective preservation eases the identification and production of relevant documents.
• Enhanced credibility: Demonstrating good faith efforts to preserve evidence can improve a business’s credibility with the court.

Please contact our office to schedule your initial consultation and determine what legal advocacy and protection may be available for your unique situation.

Frequently Asked Questions

1. When does the duty to preserve documents under a litigation hold begin?

The duty begins when a business reasonably anticipates litigation, which can occur before a lawsuit is filed or a subpoena is received.

2. Can a litigation hold be lifted after the litigation ends?

Yes, once the litigation concludes or the need for the preserved documents no longer exists, the litigation hold may be lifted, and normal document retention policies can resume.

3. Are there specific formats required for preserving ESI under a litigation hold?

No specific formats are required; however, businesses should ensure that the preserved ESI remains accessible and usable throughout the litigation process.

Have more questions about records management and document retention?

Crucially, this overview of litigation hold implementation and management does not begin to cover all the laws implicated by this issue or the factors that may compel the application of such laws. Every case is unique and may produce different outcomes depending on the individual circumstances.

Jimerson Birr attorneys guide our clients to help make informed decisions while ensuring their rights are respected and protected. Our lawyers are highly trained and experienced in the nuances of the law, so they can accurately interpret statutes and case law and holistically prepare individuals or companies for their legal endeavors. Through this intense personal investment and advocacy, our lawyers will help resolve the issue’s complicated legal problems efficiently and effectively.

Having a Jimerson Birr attorney on your side means securing a team of seasoned, multi-dimensional, cross-functional legal professionals. Whether it is a transaction, an operational issue, a regulatory challenge, or a contested legal predicament that may require court intervention, we remain tireless advocates at every step. Being a value-added law firm means putting the client at the forefront of everything we do. We use our experience to help our clients navigate even the most complex problems and come out the other side triumphant.

If you want to understand your case, the merits of your claim or defense, potential monetary awards, or the amount of exposure you face, you should speak with a qualified Jimerson Birr lawyer. Our experienced team of attorneys is here to help. Call Jimerson Birr at (904) 389-0050 or use the contact form to schedule a consultation.