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Does Your Litigation Hold Strategy Account for Remote Workers?

Google recently got in hot water over employees’ cavalier attitudes toward a litigation hold.

The tech giant took a largely hands-off approach to preserving internal chats needed for discovery in a lawsuit. Google employees switched off chat history — even admitting they were avoiding keeping conversations governed by a legal hold. U.S. District Judge James Donato called Google’s chat preservation practices in response to litigation holds “highly spotty.”

These missteps meant sanctions and potentially a penalty at the case’s upcoming jury trial. The antitrust case, brought by Fortnite maker Epic Games and other plaintiffs, targets Google Play Store requirements and practices.

The U.S. Department of Justice has made similar claims about Google’s chat preservation practices pertaining to a separate antitrust investigation.

While this is a specific issue involving a high-profile defendant, it should serve as a red flag for many companies in this current age of hybrid workforces and the further commingling of personal and professional devices.

Even when employees were in the office — and use of company versus personal devices was perhaps a bit more defined — legal holds were rife for misunderstanding. In a 2015 Thomson Reuters survey, less than a third of corporate legal professionals said they felt their employees understood the requirements of legal holds.

And there’s the rub. A government survey released earlier this year found that 27.5 percent of private-sector employers had employees teleworking some or all the time — a figure that CNN Business reported probably was a low estimate. A separate survey found that Americans this year averaged one and a half days a week working from home, CNN Business reported.

Although many employers are trying to draw workers back into the office and avoid fully remote positions, most agree that hybrid work — even if unofficial — won’t go away.

With fewer in-person conversations in the hallway or breakroom, online chats are more likely. Combine that with a plethora of apps and diminished company control over devices, and it’s a recipe for legal hold mishaps. A 2021 survey published by Statista found that 64 percent of working U.S. adults used their personal smartphones for business-related functions, and other estimates put that figure even higher. Tech giants won’t be the only ones to drop the ball here.

A key reason this issue demands attention: A legal hold doesn’t only involve those who have attended law school. The responsibility to preserve any information — digital or paper — that may be relevant to a legal case, even if there’s just a reasonable expectation that a suit will be filed, extends throughout a company.

In complying with a litigation hold, it is easy to overlook instant communications such as Slack chats, videos, texts, and other types of messaging.

In March, a Justice Department policy announcement specifically cited “ephemeral messaging applications,” tools in which chats disappear, which could include Google Chat with the history off, WhatsApp, Telegram or Signal. DoJ’s posture here includes evaluating a company’s policies and procedures with various communication forms, how a company identifies and handles potential violations, and whether these policies have been both communicated and enforced consistently.

All of this makes it crucial to establish early, crystal clear expectations with employees as to their allowed modes of communication and their duty to preserve those communications, top to bottom. At some point, businesses will face litigation, and a track record of thoughtful policies and procedures regarding legal holds goes a long way. Think of this as a practice that makes a difference for both your company’s bottom line and its reputation.

Businesses, particularly those that haven’t revised policies since the pandemic, should consider the following:

  • Train, and train again. Employee handbooks, new employee training, and training updates for existing employees should address record-keeping policies and why they’re important. Consult with your attorneys about best practices for your particular industry or operation, and include everyone from the C-suite down to entry-level workers. Consider involving leaders from various departments to uncover nuances that may require specific clarification. Be sure to cover informal avenues of communication, particularly texts, chats, and “ephemeral messaging,” and establish expectations for preserving information when an employee leaves or moves to another department.
  • Explore technology solutions. Legal holds can get complex, particularly if a company is fielding more than one simultaneously and juggling different timelines. A variety of tech options can help. Consider adding a Legal Hold tool to your technology stack that can notify custodians of their obligations, survey employees to identify data sources that may contain relevant information, and even preserve specific repositories such as Email and Document Management systems without involving Information Technology personnel.
  • Establish approved communication methods that you can control. Given the aforementioned plethora of communication options, offer mobile-friendly yet company-controlled tools for communicating. Email and voicemail typically are a given, but don’t overlook informal communication needs, particularly regarding hybrid or remote workers. Remember: If it’s not easy and smartphone compatible, employees are unlikely to use it. Further, ensure that your company has an appropriate MDM (Mobile Device Management) policy in place so that only the approved applications can be installed to a device.
  • Communicate clearly and early. When litigation is imminent, outline distinct expectations for handling relevant information and for interacting within the company, with third party vendors archiving data, or even with in-house or outside counsel. Sometimes, companies conduct internal investigations to make early assessments and adjust any procedures, as needed. Make sure your IT team knows how to configure systems to default holds — or develop a plan for getting help with this.
  • If employees aren’t complying, follow up. Proactively investigate awareness of and compliance with legal holds. Address instances of noncompliance.
  • Follow a thoughtful, consistent policy with room for evolution. Practices that comply with business, regulatory and litigation needs, and have set procedures for archiving, then deleting data, will more likely be defensible in court. However, rigid policies in the current fast-paced world of technology can quickly become outdated. Make sure that the policies are adaptable to future needs and evolving technology and review them on a consistent cadence (annually or bi-annually) to ensure that they still meet the requirements of the business.

Legal holds — indeed, litigation itself — can be intimidating. But planning ahead can streamline the process and avoid many of the missteps that can land a company in hot water.

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