Legal teams work hard to keep up with the rising number of data sources, types, and channels—but it’s no secret that these growing volumes make many processes much harder, especially legal hold. There is a litany of cases, spanning from Zubulake v. UBS Warburg LLC to Epic Games, Inc. v. Google LLC et al, showing just how important preserving relevant data for a matter is to the courts.
Legal hold or litigation hold is the process used by organizations to preserve relevant data and information for investigations or legal matters. Whether an organization is highly litigious or only handles a few cases each year, ensuring that all potentially relevant information is preserved is vital for successful and compliant e-discovery.
What Triggers a Legal Hold?
A legal hold takes place when a company instructs their employees to retain information for a potential legal matter. When an organization is notified of an impending litigation, a government investigation, or is initiating an internal investigation, all potentially impacted employees are instructed not to destroy or alter any information that may be relevant to the matter. No matter the trigger for the legal hold, digital and print materials must be preserved and gathered in one place for review.
What’s Included in a Legal Hold?
The information needed during a legal proceeding or government investigation can include emails, chats, phone calls, meeting notes, and much more, hosted across a growing number of platforms. The e-discovery process can no longer rely on banker boxes full of printed spreadsheets and memos; today, it also requires access to digital files stored in the cloud.
Nevertheless, both then and now, in-scope data must be inclusive and easily accessible. To provide this information, teams must prevent the loss, destruction, and alteration of it, and ensure availability in a timely manner. Legal hold software helps automate this process so that teams aren’t left scrambling to manage it all manually.
How Does It Work?
We’ve gone over why a legal hold may take place, but now let’s look at the process for enacting it.
- Decide what to include. Whether an internal investigation has prompted the legal hold or a case has been filed against an organization, the first decision must be what data needs to be preserved and gathered. This often includes working with security and IT teams to determine those who may interact with the relevant data.
- Distribute the legal hold notice. The next step includes letting the appropriate parties know that their information is now part of a legal hold and cannot be destroyed or altered in any way. Custodian interviews will take place to uncover what information needs to be preserved and clarify what matter it’s related to. Once a custodian receives this information, they’re tasked with ensuring their documents are retained. It’s important to make sure that they understand their role in conservation and acknowledge their adherence to the notice.
- Monitor the hold and send reminders. Instituting the hold is an important step, but making sure it is appropriately and efficiently carried out is key. Reminder notices should be sent to the relevant parties to ensure their acknowledgment and adherence to the litigation hold.
- Document the process. Legal hold can be one of the riskier processes legal teams handle, as there are strict regulations and laws about how it should be conducted—and the consequences for noncompliance can be huge. Therefore, it’s vital that the team keeps the process and ongoing status updates documented in case it becomes necessary to prove compliant efforts later.
- Release the hold. Once the legal hold is no longer necessary, it’s important to let those know impacted know.
All these steps are both important and complicated—and can become even more so, because a legal hold is often not a linear process. The scope of a matter often changes as it progresses, which means that the information needed and the custodians involved also change.
Moving from one step to another isn’t as simple as checking off a to-do list; as a result, it can be difficult to manage and error-prone when keeping track of evolving matters with manual tactics alone.
3 Common Challenges of Issuing a Legal Hold
All legal teams know the gravity of mishandling a legal hold and do everything in their power to avoid outcomes like spoilation and noncompliance. But—like any process that involves a lot of different people and systems—effectively and efficiently carrying it out can be difficult, especially when using a handful of different channels to send notifications, elicit survey results, and communicate with those affected.
Here are the common challenges teams face:
- Manual processes: Without automation, legal and litigation support employees are often tasked with enacting, tracking, and collecting information for a litigation hold. Working across disparate tools like Microsoft Office and Google Workspace, along with Slack and Zoom, can make it feel impossible to collect all the relevant information in a timely manner.
- Overlapping holds: Maintaining preservation becomes greatly complicated when multiple legal holds take place at once. It is common for custodians to be under more than one legal hold at a time, and tracking who and what is covered under each one when done manually can be cumbersome and risky. The danger of releasing an active hold and failing to preserve information is too high without automation.
- Tracking adherence: As mentioned, documenting the process of preserving the necessary data is key to compliance and success. Therefore, tracking litigation holds starts by tracking the custodians tasked with carrying them out. It can be daunting and ineffective to manually remind those involved—and obtain and record their acknowledgment—without automating the process.
How Can Technology Help?
Many of the challenges teams face when working through legal holds stem from the fact that this complex process has been manually tracked and conducted for too long. Just as the format and types of documents that make up most legal holds have changed, the best way to handle legal holds has, too—and it starts with the right software.
Legal hold software streamlines the process from start to finish. When a legal hold is necessary, a tool like Relativity Legal Hold walks the custodian through an automated workflow to ensure no crucial steps are missed or overlooked. From automated reminders to preservation-in-place tools, legal and investigations teams have a defensible process to ensure flawless execution.
Every team knows that switching between platforms and pulling data from one source to the next takes valuable time away from them; collecting all the data—no matter the channel—into one easy-to-use platform, teams can save time and resources. No more manually pulling PowerPoint slides into a file with chat transcripts and tracking it in an Excel spreadsheet. Automation can help IT and litigation support teams work seamlessly to ingest and preserve the right data in the right place while also reducing errors.
When data is kept in a singular platform, security risks and data management concerns are also minimized. IT teams can rest assured that sensitive data is kept in one secure, compliant platform instead of being dispersed across multiple sources.
Legal Holds for the Modern Era
Legal hold is a critical step in any e-discovery process. From internal investigations to lawsuits, legal teams must be able to collect and preserve all relevant data from custodians quickly and without missing any smoking guns.
Fortunately, what has long been a manual and error-prone process for teams is now streamlined with the help of purpose-built software. By automating tasks and maintaining good data security and management with Relativity Legal Hold, this process can become more efficient, effective, and seamless.
Graphics for this article were created by Natalie Andrews.