With all the talk surrounding new e-discovery technologies, like predictive coding, you might think organizations have the legal hold problem solved. In reality, that's far from the case. In fact, surveys continue to show that managing legal holds remains among the most vexing of e-discovery challenges.
One analyst firm that has been paying heed to the legal hold need is the eDJ Group. Lead eDJ analyst Barry Murphy predicts that 2013 will be the year of legal hold management. Murphy correctly looks at legal hold processes as a barometer for measuring an organization's e-discovery and information governance maturity. In a recent article, he revealed the results of an eDJ survey, finding that “almost a third (of respondents) track the (legal hold) process via spreadsheet, which is a labor-intensive and manual way to do it, while another third don't track the process at all. This means there are some organizations out there at risk of major eDiscovery problems."
Barry Murphy's eDJ colleague Miiki Tomlinson, an experienced litigation support manager and legal hold expert, helped shed some light on what constitutes a truly defensible legal hold process in her informative article series Legal Hold FAQ's. While Tomlinson doesn't endorse a specific legal hold system or even the use of a specialized tool, her series serves to highlight some of the shortcomings of the traditional email/spreadsheet approach. Here are some of the salient points she addresses:
A legal hold notification must contain the right information
Since the typical recipient of a legal hold will have scant knowledge of the legal issues surrounding the matter, let alone the applicable discovery rules, it is critical that the notification itself equip them with the necessary amount of information to fulfill their obligations. At the same time, the notification can't be so bogged down with info that no one will take the time to read it. Tomlinson explains that all legal holds must contain the following:
1. A description of the matter
2. Scope of documents and information subject to preservation obligation (such as description, types, date range)
3. Instruction on preservation obligations
4. Who to contact with questions
One of the advantages of using a specialized legal hold system, rather than relying on organic email creation for notifications, is it allows users to reuse standard templates to a far greater degree than any email system. Besides improving efficiency, templates allow legal teams to define an effective notification format and repeat it across matters, ensuring key information isn't left out.
The legal hold must go to the right people
Determining who should receive a legal hold notification can be a major challenge. A triggering event, such as a legal compliant or a notice of regulatory action, will likely set some broad parameters, but the onus is on the producing party to retrieve all potentially relevant evidence regardless of whether or not its source was identified at the outset of the matter.
Tomlinson writes that it's “ultimately up to counsel to determine who will receive the notice." Among the less obvious candidates for a legal hold notification that she identifies are former employees that may have created or may have been in control of data subject to the legal hold obligation, as well as data stewards, employees responsible for systems that may contain data subject to legal hold but are not themselves necessarily knowledgeable about the content created in the system.
From a technology perspective, there are a host of software applications that can support this kind of legal hold scoping. For example, advanced legal hold applications can integrate with an organization's HR system, allowing legal teams to easily track the movements of employees within the organization and identify when a former employee's data may be implicated in a matter. Automated interview applications can also assist legal team efforts to expand the potential “web" of custodians involved in a given matter. These products help create and manage custodian interviews/surveys and aggregate responses so legal teams can act quickly to add people to the hold and ensure potentially relevant ESI isn't lost.
A legal hold process must include a framework beyond the notification itself
Simply issuing a legal hold notification does not equate to a defensible process. In fact, we recently reported on a case where sanctions arose not because a party failed to notify custodians of their duty to preserve but because they failed to adequately confirm or track compliance (see United States ex rel. Baker v. Cmty. Health Sys., Inc.). According to Tomlinson, there are standard components that must go into any solid legal hold program, which include:
1. A method for custodians to confirm receipt and acknowledgement of their responsibilities
2. A method for custodians to indicate others that may also be subject to the legal hold
3. A process to issue a legal hold upon a triggering event
4. A systematic trigger to amend a legal hold when necessary (e.g., when an amended complaint is filed)
5. A method to audit legal holds
This is where traditional or e-mail based legal hold methods come up woefully short. The more advanced legal hold software applications provide the above mentioned capabilities as part of one centralized system. Upon opening the notification, custodians can acknowledge receipt, confirm they understood it and indicate whether others should be included. Relying on custodians to communicate this information on their own imposes a burden on the legal hold notification recipients (they have a day job, after all) and exposes legal teams (and the organization) to unnecessary risk, since they are ultimately responsible for confirming legal hold compliance.