Though the necessity of a strong legal hold is a routine matter in e-discovery—there’s no disputing years of court cases that hold parties accountable for protecting data that may be relevant to a pending or ongoing legal matter—the process of how to preserve that information is far from routine. Why is it that legal holds often feel like a gamble?
Following the formal presentation, Ben Legatt, director of consulting services for Shepherd Data Services, and I fielded questions from attendees. Based on key takeaways from the event, here are some important steps you can follow to get the most out of your legal hold workflows.
Step 1: Know When to Start
The courts have made it very clear that businesses have a duty to preserve at the onset of litigation. Beginning with Judge Scheindlin’s landmark opinions in Zubulake and formalized through the Sedona Conference on Legal Holds, we know that parties must preserve all relevant information when litigation is “reasonably anticipated.”
That said, some companies still fail to preserve this information. So what does “reasonably anticipated” mean?
It’s hard to say, but history shows it’s best to err on the side of caution—and that your duty can be triggered long before a lawsuit is actually filed. A notice of likely or impending litigation is plenty of reason to trigger a legal hold. Check out the Sedona Conference Commentary on Legal Holds for more guidance.
You can also start covering your bases before litigation even begins with a well-defined and consistently executed data retention policy. Work closely with your IT team, and your records management, human resources, and management staff to build this out.
Step 2: Spot Your Inefficiencies—and Address Them Collaboratively
If you know your legal hold process is painful, the best way to start fixing it is by identifying which part of the process is causing you the most difficulty. Often, you can recruit help from other teams touched by legal holds to tackle the issues at hand.
For example, are you having trouble tracking down the right custodians? Connect with your IT team to see how you can access the Active Directory of personnel, and stay notified of employee movement. Tools such as Relativity Legal Hold can automatically sync your organization's Active Directory with your environment to make this process simple.
If you’re already working with IT on that data retention policy, stay in touch with them on your company’s data sources, how backups can be accessed, and other technical considerations that will be important to strategize on as you begin to identify important custodians.
Finally, communicate frequently with your potential custodians. With the right questionnaires and interviews, you can learn a lot about the matter—and any associated data—early on.
Step 3: Have a System
Consistency is key to the efficiency of your legal hold process. A preservation costs survey performed last year found that more than 79 percent of responding organizations—small and large—reported a great or moderate extent of preservation burdens. Though certain types of large companies may litigate more frequently, smaller companies are less likely to have specialized teams to handle litigation when it does arise, so the burden is no less painful.
That same survey also found that, for the larger companies who participated, a reduction of just 3 percent of employee time spent on litigation holds would equate to savings of over $1 million each year.
Whether you’re performing legal holds manually or with specialized software, you can likely improve your process by at least 3 percent simply by documenting, training on, and practicing your workflow to ensure your team has it down to a science. If you are opting for a system such as Relativity Legal Hold, consider the following:
- Visibility. How easy is it to get up and running or see status updates at a glance? Can you use the tool to sync with other teams’ systems, such as HRIS databases?
- Scalability and repeatability. If you’re bringing a tool in-house, keep thinking ahead. How will the system scale to handle dozens—or hundreds—of projects at once? How easy will it be to manage a new hold once you’ve built a workflow that works for you?
- Defined but customizable workflows. One major benefit of automated software is that you won’t have to build your own workflows from scratch—out-of-the-box processes will be available. But there’s no one-size-fits-all approach, so consider whether you have the freedom to adjust the process to best suit your team.
- Custodian interaction. What does the process look like if you’re kicking off a notice or questionnaire for a custodian? And what does the interface look like for custodians as they respond?
- Reporting. How much detail can you get on user activity, custodian responses, and the progress of your holds? What kinds of notifications and escalations can you set up based on the results of those reports? Can you set up automatic sends of reports on the progress of a hold? These are important questions to help you build a strong, defensible process.