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Creating a Consistent E-Discovery Preservation Hold Process

Created on June 22, 2015

Chief Marketing Officer at Exterro

Exterro was founded with the simple vision that applying the concepts of process optimization and data science to the way companies respond to litigation would drive more successful outcomes at a lower cost. The process part seems pretty obvious when you think about it. All the other departments and lines of business in an organization have been exposed to business process re-engineering or optimization for years and even decades, so it would stand to reason that the principles would be applied to the legal department as well, right?

Surprisingly, we find many organizations that have yet to apply a repeatable process to even the preservation of electronically stored information (ESI) within broader E-Discovery activities. Yet having a legal hold process that preserves data throughout the full lifecycle – from initiation to release and data deletion is critical. That's why we teamed up with Rich Vestuto from Deloitte on a soon-to-be published article in the July/August edition of ARMA's Information Management Magazine titled, “Critical Steps to Creating a Consistent Preservation Hold Process."

To give you a preview, I've condensed the article below to help you understand the key points, but I would recommend you review the full article when it's published next month if you have yet to implement a preservation process within your own business.

Step 1: Understand the Legal Hold Life Cycle

At its most basic level, a legal hold is a form of notification, often an e-mail, informing the recipient that a lawsuit has been commenced or is reasonably anticipated and that the party receiving the e-mail must preserve all data potentially related to the subject matter of the case.
While the basic process of issuing, monitoring and documenting legal holds is fairly similar across many organizations, the actual tasks and activities can become quite complex, depending on the size, type and industry of your business. Basic Steps include:

  • Conferring with key stakeholders, including IT and HR to ensure all involved understand their obligations
  • Suspending any automatic deletion or purging programs (typically applied to email)
  • Issue the legal hold notice
  • Interview key players
  • Periodically remind employees of their obligation as matters often take a long time to get resolved
  • Release the hold once the matter is closed

Step 2: Avoid Common Preservation Mistakes

Case law is littered with examples of companies who have failed to address these common issues, and been adversely affected as a result:

  • Poor custodian (employees/key players) identification and tracking
  • Poor data source identification. If you don't know all the places data is stored and archived, you can easily miss finding relevant ESI
  • Poor hold discipline
  • Poor communication
  • Lack of protocols/process

Step 3: Understand Legal Ramifications of Failure

A lack of planning, an over-reliance on manual, error-prone methods and poor communication between various stakeholders involved in the preservation process can lead to severe sanctions; courts have made it very clear that ignoring the problem no longer works.

Step 4: Eliminate Manual Processes

Automation is one area in which technology becomes indispensable to a defensible, efficient process. Legal Hold software can help in the following ways:

  • Creating hold notices
  • Automating custodian interviews
  • Establishing and enforcing workflows
  • Sending reminders and escalation notices
  • Providing a full audit trail of all your activities

Step 5: Track Employee Status Changes

This is a really important step as employee terminations, leave of absences, internal transfers and other status changes can often lead to unintended spoliation (data destruction) as common IT policies to delete, reimage or destroy data are applied to information that is on hold

Step 6: Be Proactive and Educate

One of the easiest counter measures to data spoliation is awareness and education. Educate your peers in IT and HR in addition to all custodians regularly and document your process.

While preservation obligations are typically well understood by legal departments, failures occur due to a lack of planning and an over-reliance on manual, error-prone processes. By following the steps above, you can significantly reduce risk and improve the defensibility of your efforts.

Learn more preservation best practices by downloading Exterro's complimentary, “ Attorney's E-Discovery Preservation Checklist."