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Legal Hold on Digital Business Records

As more corporate communication is carried out over the web, how do you make sure that you can place a legal hold on digital business records? From simple websites, social media, wikis to corporate chat applications such as Salesforce.com Chatter, Yammer and Jive, they can all be considered business records in the event of litigation. The question of legal hold on web-based business records seems to come up with increasing frequency, mainly because the use of web-based applications within the corporate environment has exploded over the past few years.

Business Records

The central issue is that an increasing amount of corporate web content now constitute business records.  Many companies have embraced BYOD and, often by extension, the proliferation of web-based collaboration and social media platforms without corresponding records management controls.  The lack of  records management policy for digital data will put organizations at an increased risk in the event of litigation.  Having a solid digital records management policy simplifies eDiscovery and reduces the risk and cost related to litigation. Digital data can be archived, retained or destroyed according to the plan.

Legal hold

If litigation is anticipated, all digital business records must be held unaltered in case they are relevant. Tools are available to capture, archive and playback critical business records including social media and business ‘chat’ applications. Forward thinking organizations are putting in place the policies and tools to ensure that eDiscovery requests can be fulfilled, putting the organization in the strongest possible position in the event of litigation. Whether it’s Yammer, a Salesforce Chatter application, a corporate Twitter feed, multiple internal Sharepoint sites or simple Corporate websites, the range and scope of web-based applications within the modern organization makes it essential to look at the tools required to provide legal hold on digital data.

Sanctions

Sanctions relating to the inadvertent destruction of digital business records prior to litigation are a constant concern for many companies. Organizations that either don’t put in place relevant records managements policies or allow the reckless disposal of digital business records are putting the organization at serious risk of spoliation sanctions.  As an example, web-based chat applications are now so widely used, that many individuals would not even recognize them as business records and that they are subject to a duty to preserve.

Where next

If you’re a corporate counsel or a project team leader with a requirement to look at providing legal hold for a new breed of web-based applications, don’t hesitate to get in contact with us at Hanzo Archives. We are happy to share our experience in working with other organisations in a similar position.

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