Corporate counsel often shoulder the burden of managing the entire Legal Hold process for their organization.
That means on top of everything else, they must issue, execute and ensure compliance with required legal holds in the event of anticipated litigation, regulatory request responses, internal investigations, and due diligence activities.
These processes, when done manually or with an outdated solution, can be daunting and cumbersome, and involves:
- Hounding unresponsive custodians
- Monitoring overlapping legal holds in multiple cases
- Updating spreadsheets to track custodians
- Stressing over missing data
- Worrying about the defensibility this legal hold process
While implementing legal holds requires preparation, the right legal hold software can lighten your workload and ensure all your records are properly preserved for legal defensibility.
Creating a defensible legal hold process
A legal hold (also known as a litigation hold) directs employees to preserve certain records and information that may be relevant to a pending or anticipated lawsuit or investigation. The duty to preserve information dictates that information not be modified, destroyed, or deleted. Any of these could lead to the permanent loss of data, which is commonly referred to as “spoliation.”
Spoliation can easily result in eDiscovery sanctions. In 2003, Judge Shira Scheindlin penned the seminal decision in Zubulake v. UBS Warburg IV, which has become black-letter law regarding legal holds. Judge Scheindlin wrote, “Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.”
Federal Rule of Civil Procedure 37(e) gives the courts the authority to penalize parties for allowing or causing the spoliation of discoverable information. This adverse inference instruction could have a devastating effect on the outcome of the case. Moreover, the court may go further, dismissing the action or ordering a default judgment as a sanction for intentional spoliation.
A legal hold is the first line of defense to protect your organization against possible spoliation of evidence and attendant sanctions.
Implementing a legal hold
Law departments must establish a legal hold process that they can implement quickly and consistently, because time is of the essence when litigation is anticipated.
The first step to defensible legal holds is to implement a data retention policy and practice good data hygiene. A retention policy enables organizations to minimize the amount of data they hold—and the less data you have, the less you need to worry about preserving.
Once litigation is reasonably anticipated, you must send out a legal hold notice and suspend your routine data retention policies. The legal department sends the legal hold order to individuals who may have relevant data (the “data custodians”), directing them to maintain their data from that moment forward.
Unfortunately, you can’t assume that data custodians will promptly see your legal hold and take the necessary action. To create a defensible process that will withstand judicial scrutiny, you’ll want to have data custodians send notifications acknowledging their receipt of the hold—and you’ll want to deal proactively with any unresponsiveness.
Sourcing appropriate legal hold technology
Legal hold software solutions can simplify this process. They can automate routine tasks, minimize your manual work, and help you manage the legal hold process strategically and defensibly. Legal hold software creates efficiencies in:
- Issuing holds,
- Interviewing custodians
- Preserving relevant information
- Sending out automatic reminders and notifications
- Monitoring compliance
- Creating thorough tracking and audit trail reporting
The right legal hold software can make a massive difference in the implementation and defensibility of your legal hold process.
7 things to look for in a legal hold solution
As you consider potential legal hold solutions, evaluate their suitability by asking these seven questions.
1. Is it secure?
Security is paramount in the legal hold process. Before you entrust any software provider with your organization’s data, do your due diligence. You’ll want to get the go-ahead from the IT department for your software of choice. Make their work easier by ensuring that the solution you’re considering features end-to-end encryption, two-factor authentication, customer isolation through network security, permission-based user and access roles, and virus scanning and malware detection measures.
2. Can it automate communications?
Your ideal solution will automate and manage communications with any number of custodians across multiple cases. Templated messaging (emails), questionnaires, and scheduled automatic reminders make communication seamless, thus saving time and mitigating risk.
3. Is it user-friendly?
An easy-to-use, intuitive interface means everyone will feel comfortable using the software, which increases the odds of full software adoption. This goes a long way to ensuring custodian responsiveness and compliance, as custodians will know what is expected of them and will know how to comply.
4. Can it track responsiveness?
You’ll want reporting functionality that shows which custodians have responded to your hold requests and tracks the number of holds per custodian and holds per attorney, as well as the overall status of all legal holds. You want to be able to see the big picture at a glance so you can escalate and address any noncompliance.
5. Can it, where necessary, preserve data by collecting and uploading it seamlessly?
Data comes in a vast range of formats from various repositories and systems. You need a legal hold solution that can preserve data in place in all imaginable file formats. Where in-place preservation isn’t possible, you’ll want the ability to collect data easily and quickly. This means you’ll want direct connectivity with various online repositories, including Microsoft 365, Google, and social media, with drag-and-drop uploading and cloud uploading for Microsoft Exchange and Google G-Suite.
6. Does it create an audit trail?
If an opponent should challenge your preservation of ESI, the best way to demonstrate the defensibility of your legal hold process is through a complete and accurate audit trail. Make sure that any software you’re considering for legal holds can create full audit trails that show when you implemented a hold, issued hold notices to custodians, sent reminders, and more.
7. Does it come with training and support?
Even the fanciest features are no good if the software you’ve chosen crashes or is hard for your team to use. The best legal hold software comes with complete onboarding support and ongoing training, customer support, and technical assistance.
Why you need a smart legal hold solution
Smart legal hold solutions can ease the burden of managing multiple and voluminous preservation matters, improve the defensibility of your preservation efforts, and free up your valuable time for more strategic work.
Learn more about Legal Hold solutions from IPRO.