Legal Hold, Due Diligence or Due Care?

About this interactive

The lesson's scenario: a company bought artwork from an artist and thinks it has sole rights; the artist says the company allowed reuse. To find the truth, both sides need the communication between them. Discovery collects it; e-discovery is the electronic part: email, documents, chat and text messages, found on servers, databases, file shares, removable media and computers. Legal hold: these sources keep changing, and a case can take a long time. A legal hold (or litigation hold) freezes the relevant data: a backup copy is taken and set aside, automatic deletion is stopped, or staff are told not to change or delete anything. It protects both sides, so nothing critical is lost and nothing is covered up. How far does the search go? Not every laptop of every employee, but what a court, and people in general, would see as reasonable. Due diligence is the prep work: research and planning, such as working out where the communication could be and drawing up the checklist of sources to search. Due care is carrying it out: actually doing the reasonable search, checking each item off. (Other courses phrase it slightly differently: due care as acting the way a prudent person would, due diligence as the investigation that supports it. The split between the homework and the action is the same.) To sort a card, ask: is this freezing the data, working out what the search should cover, or doing the search?

What you'll learn

Recognize a legal hold: freezing data that a legal action may need, by keeping copies, stopping deletion or telling staff not to change anything
Tell due diligence, the research and planning that decides what a reasonable e-discovery search covers, from due care, carrying out that reasonable search

Aligned to

CompTIA Security+

4.8 Explain appropriate incident response activities.

5.4 Summarize elements of effective security compliance.

ISC2 CISSP

1.4 Understand legal, regulatory, and compliance issues that pertain to information security in a holistic context

Key terms

Legal Hold: A directive that freezes or preserves relevant data and records to prevent alteration or deletion during an anticipated or active legal proceeding.
Due Diligence: The preparatory research and planning work performed to identify what obligations must be met before carrying out due care actions.
Due Care: The reasonable actions an organization carries out to fulfill its legal and ethical obligations, measured against what a prudent person would consider acceptable.
E-Discovery: The process of identifying, collecting, and reviewing electronically stored information—such as emails, documents, and databases—as part of a legal action or dispute.

Topics

Legal Hold E Discovery Due Care Due Diligence Interactive Categorize

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