by Nik Balepur
on June 04, 2015
Whether you manage the intricate needs of a litigious company or see litigation only as a rare and unfortunate surprise, placing custodians on a legal hold is no simple task. As a United States district court ruled in 2013, “the duty to preserve is not a passive obligation; it must be discharged actively.” In fact, when done poorly, legal hold can produce a domino effect with risky consequences.
The legal landscape for legal hold has changed somewhat since the landmark Zubulake series of decisions, and pending amendments to the Federal Rules of Civil Procedure may affect how law firms and businesses preserve data and conduct legal holds. However, one thing is certain: the obligation for effective legal holds is not going away.
As the first formal step in e-discovery, legal hold sets the tone for an entire matter—and starting off right is critical to your case’s defensibility. You need to set your team up for success and tackle any legal hold challenge with the right process. But some challenges aren’t that easy.
You’ve tried sending the message from paralegals, in-house counsel, and your chief legal officer. Sometimes, custodians just don’t see the notices—or don’t get around to answering. How can you encourage earlier compliance without wasting time knocking on their door a full month into the hold?
Implementing a specialized tool to automate workflows and replace Excel files tracking employee responses will significantly improve your follow-up efficiency. Use a system that enables automated reminders for your custodians. That way, they’ll receive your initial notice and consistent follow-ups that meet your timeline for the project. Still no luck? Consider automating escalation notifications to their superiors. It’s easy with tools like Relativity Legal Hold, and will help you knock down doors less often.
Internal team composition and projects change quickly, and you’ll often be an outsider to the context of the threatened litigation coming across your desk. How do you keep track of who at your company works in which group, and which departments are involved in which projects?
Keep a close relationship with your HR and IT teams, as they can notify you of organizational changes that may affect your holds. Even better, sync your legal hold software to HR systems so they automatically update. And don’t forget to perform interviews—digitally or in person—with folks on the fringe of a matter. By asking the right questions early on, you can defensibly scale back the size of your collection and review down the road.
“How many custodians have responded so far?”
“Where are we on those questionnaire responses?”
“How frequently are unresponsive custodians getting reminders?”
These are simple questions, but if your legal hold process is heavily manual, it can take time to pull the answers—and stakeholders don’t always want to wait.
While a single, knowledgeable owner with an organized manual system for tracking holds may work for some companies, it isn’t scalable for more litigious organizations. If you’re more like the latter, consider investing in a specialized legal hold tool that can help you track every hold’s progress—and capture user activity—in a single place. Either way, work with internal experts from HR, IT, and legal to run the process smoothly and consistently.
The go-to legal hold expert on your team is on maternity leave when a letter of intent falls across your desk. How do you proceed without her? Or maybe your general counsel is retiring, his replacement is anxious to learn your current processes, and you’re just not sure how to start training him. Where do you begin?
It’s risky to have only one person on your team handling such a critical business process—and equally risky to have a process so complex you can’t easily explain it to the new guy. Either way, the answer is simple: create templates and documented processes that anyone on your team can reference again and again. It’ll help distribute knowledge, establish repeatability and defensibility, and provide a formal place to make updates whenever changes come out of a passing conversation between two team members.
Legal hold isn’t just over when it’s over. Details and circumstances change throughout the case lifecycle, and new holds may need to be issued as new criteria is uncovered. Worse, your review team down the line may be swamped with data and wondering where it all came from—and they’ll likely come to you for answers.
Keep these cures in place, and you’ll be ready to move quickly on a new hold requirement midstream. If your process is well documented and well understood by your team, you can easily answer questions about why a certain custodian’s data was considered critical. If something went wrong, work off of your templates and the knowledge you gained later in the project to improve your workflows for next time. Research from Forrester suggests that large enterprises may be wasting tens of millions of dollars on lost productivity for employees responding to legal holds—but it doesn’t have to be that way if your process is succinct and familiar.
Nik Balepur is a member of kCura's advice team. With 10 years of experience managing legal and technology projects, he is well versed in maximizing operational effectiveness for e-discovery.
Want more information on how you can avoid the domino effect of risky legal hold with the right tools? Check out this infographic.