5 Advanced Legal Hold Tips

At Exterro, we spend a fair amount of time on this blog and in our other educational materials discussing the basics of e-discovery, including legal holds. In fact, our single most popular resource ever is our Basics of E-Discovery Guide.

However, for a lot of our audience, they’ve moved beyond the basics. In terms of legal holds, the topic of this post, the basics might include things like:

• Time consuming manual processes, including checklists for steps of drafting and distributing a legal hold to spreadsheets for tracking custodian compliance
• Low rates of adoption by custodians
• Limited visibility into the process on the part of legal team members
• Reactive processes, initiated in response to legal notifications, rather than proactive preparation for potential litigation

Now, the last thing we’re going to do is blame people or organizations who are still at this stage. It’s a step in the evolution that every legal department has to go through. Ideally it’s an evolution that doesn’t happen because of a legal problem… but we’ve all been there.

However, if that’s where you’re at, you’d be better off downloading our Beginner’s Guide to Legal Holds, because the rest of this column is going to discuss several advanced legal hold tips. If you’ve already mastered the fundamentals, here are five tips that can take your legal hold process to the next level.

1. Actively track custodians on legal hold. In the current work world, employment and organizational statuses are constantly changing. Whether in the shape of employee promotions, terminations, or transfers, or due to mergers, acquisitions, and spin-offs, it’s not uncommon for legal hold custodians to be added or dropped from lists on a frequent basis. Make sure you’re tracking these changes, either on your own or with a software integration with your human resources information system.
2. Release legal holds on a timely basis. For some legal departments, it may feel like keeping legal holds in place is less risky than releasing him. The legal system allows for appeals on rulings, and often multiple legal matters may overlap, so that ESI is on hold for multiple reasons. However, over-preservation potentially increases both costs and legal risks. If your organization settles, for example, the matter is likely over. Linking your e-discovery software with case management software—especially if you can automate the release process—can save time and money and minimize the risks associated with releasing legal holds.
3. Preserve data in-place, rather than collecting to preserve. As legal hold technology’s capabilities evolve and increase, methods of preservation that made sense even a couple years ago become less appropriate today. In the past, collecting to preserve made sense, as it minimized the risk of accidental or intentional spoliation by custodians. Today, however, legal hold tools can lock down data where it resides, without collecting it. This reduces storage costs while ensuring defensibility, an e-discovery win-win if there ever was one.
4. Use a questionnaire to identify keywords and additional custodians. Don’t think of your custodians in e-discovery matters as just boxes to be checked or obligations to meet. Of course, it’s critical that they help you preserve relevant data. But they’re also incredible assets to get to the facts of the matter—they can give you valuable context on search terms and other ways to find the relevant ESI. Similarly, they can point you towards additional custodians that might have more important information. Take the time to interview them and find out what else they know that might help you resolve a legal matter.
5. Consolidate legal hold notices and reminders. For many organizations, there’s a list of “usual suspects” that tend to be involved in multiple matters. Usually, this is a function of their role in the organization, not anything they’re doing that’s problematic. But whether your serial custodian is in compliance, risk, or product management, if you know they’re likely to be on hold for multiple matters, maybe you should put proactive holds in place? Or at the very least, compile the various matters and timelines into a single legal hold notice, rather that generate multiple notifications that could be confusing or accidentally skipped over?

These tips are more than a “starting point” for advanced legal hold practices, but they’re certainly not the full picture. If you’re interested in developing a comprehensive understanding of legal holds and ESI preservation, download Exterro’s newly updated Comprehensive Guide to E-Discovery Preservation, 2nd edition, today!