Litigation hold (also known as a preservation order and legal hold) all have the same legal meaning; a stipulation requiring an individual or organization to preserve all data that could relate to a anticipated or pending legal action involving the individual or organization. The litigation hold responsibility is one of the biggest liabilities individuals and organizations have in the civil litigation process. If a litigation hold is ignored or insufficiently applied, the Judge will not tolerate excuses and the outcome can be a spoliation or destruction of evidence ruling which in turn can cause an adverse inference order be issued and loss of the case. Several third party eDiscovery applications provide for litigation hold placement on individual items to reduce over saving of non-responsive ESI.

In Exchange 2010, Microsoft suggests placing a custodian’s entire mailbox on litigation hold. In other words specifically putting a custodian’s mailbox on litigation hold ensures an indefinite retention on all content, even the content not relevant to the case at hand, in the user’s mailbox until the mailbox is removed from Legal Hold. This shotgun tactic does ensure all potentially responsive ESI is retained at the time of placement but many attorneys are leery of blindly placing a litigation hold on all content due to the possibility of over retaining ESI that is not responsive to the current case but could be in a future case.

To put a custodian’s mailbox on litigation hold in Exchange 2010, the person making that decision needs to be part of the “Discovery Management” Role in Exchange.  By default there are no approved auditors in the organization, including the Exchange Administrator, which has the right to put a user’s mailbox on litigation hold.  The Exchange Administrator can go into the Exchange Control Panel and give themselves (and others) the right to enable litigation hold for mailboxes.

Another caveat for Exchange 2010 litigation hold is that it could take upwards of 1 hour before a litigation hold takes effect on a given custodian’s mailbox. This is because the policy needs to be enacted on all messages and folders in the mailbox and be replicated through Active Directory. With litigation hold enabled, all messages, regardless of the organization’s retention policy will be retained until released.

Another aspect of placing effective litigation holds in Exchange 2010 is the question of PST files. PSTs are a long running problem area for corporate legal as well as the IT department. The problem is this; PSTs include email, attachments and metadata no longer preset within the Exchange email system. So when an auditor searches a custodian’s mailbox from Exchange 2010 for relevant emails and attachments, they aren’t able to search for any PSTs the custodian has on their local workstation.