Legal Holds for Smart People: Part 4—The Benefits of Using Technology to Manage Legal Holds

Over the past year, I have had several opportunities to give talks about the legal hold process and to speak with a number of people from corporate legal departments. One thing I have learned is that many legal professionals, particularly in smaller companies, still manage legal holds using email, spreadsheets or other jury-rigged systems.

When you only have a few legal holds to manage, this can be a workable approach. If your company is like most, however, you have more than a few—sometimes dozens—of holds to manage at any given time. I know of companies who have thousands of custodians on legal hold.

If your legal hold strategy is dependent on manual methods and requires a good memory to succeed, you might be subjecting your company to unnecessary risk. For a lot of obvious reasons, email, spreadsheets and Word files are not a good way to manage legal holds. This is particularly true when you realize that challenges can arise years after the hold itself was initiated, often long after that key employee who administered the hold has left the company. What do you do then?

Legal hold platforms, such as Insight Legal Hold and Collection (LHC), automate the process of creating, sending and tracking legal holds. Many also provide collection services and a secure work space for search, culling and promotion. By automating the legal hold process, these software applications can reduce the risk of sanctions for lost evidence (spoliation), while giving you greater peace of mind and more time to spend with your family in the evenings.

This is the fourth installment in my legal hold series. Here are links to the first three:

In this last post, I will discuss how the right technology can help you better manage the legal hold process. For my examples, I will use Insight LHC, but there are certainly other good products to consider.

Core Functions

A good legal hold platform will provide a simple way to manage legal holds, data collection and data preservation and also to perform early case and data assessment. Here are six core functions that should be covered by the software you choose.

  1. Legal hold management. Send and track notifications, set automated reminders and meet legal hold requirements.
  2. IT system integration. Connect with internal email and HR systems to select custodians from different departments or locations.
  3. Employee questionnaires. Notify and survey key employees to gather important information and identify relevant data sources and documents.
  4. Direct collection. Collect from custodians located across the globe or directly from enterprise mail, drives or storage networks.
  5. Processing and search. Search for relevant documents by text and fields after data is automatically processed, loaded and indexed.
  6. Promote or preserve. Promote relevant documents for review and production or archive them in a low-cost preservation repository until needed.

If your system only performs some of these functions, you might consider what you are missing.

Creating and Managing a Legal Hold

Software such as Insight LHC makes it easy to set up a new legal hold. For example, let’s assume that we are working in the legal department for Greenway Pharmaceuticals. The GC has asked you to take charge of the hold process. A new matter has arisen, so we need to set up a new hold.

Initial View: Insight LHC provides a simple dashboard of your existing matters similar to this example from our demo site. Depending on your position and user rights, you may see only one matter or several of them.

From this opening dashboard, you can quickly jump into an existing matter either to create or monitor legal holds.

And quickly move into a specific legal hold:

Here, we already have two legal holds in play. You can see the status of each hold in the grid.

New Hold: In this case the goal is to create a new hold for the new dispute. Start by clicking on “New Legal  Hold,” fill out some basic information and choose custodians to be notified.

Integration: The ability to choose custodians from your company’s directory system is an important feature in a legal hold program. Insight LHC integrates with a number of corporate directories including Active Directory, Office 365, Symantec Enterprise Vault and others. These connections allow you to choose custodians from around the company, by title, department, location or even workgroup.

Drafting the notice: From here, we can draft a hold notice in just about any form we want using the system’s rich text editor.

This is one example of a hold notice. Each should be tailored to your needs and situation.

Since legal holds may cross borders, your system should support a wide range of foreign characters as well.

Surveys: We might also want to include a survey with our hold notice. Insight LHC provides a list of standard questions to consider along with the ability to create custom questions.

These questions can elicit information about the data held by each custodian, where, when and so on. They can also be tailored to ask about the custodian’s knowledge of events leading to a potential claim, or suggestions for other custodians to contact, and anything else that might help you better understand the situation.

Automated Reminders: As a last step, you will want to create automated reminders, both for asking custodians to acknowledge that they understand their hold obligations as for periodically reminding them that the hold remains in effect. Reminders can be configured to go out automatically through Insight LHC as often as is necessary.

Ultimately, those are the tools you need for a basic legal hold process. Most programs deliver some variant of these features but good technology can go much farther.

Profiling a Custodian’s Data

In addition to sending notices and reminders, systems such as Insight LHC can also report on the types and volumes of data on a custodian’s computer. Here is an example screen for a data profile request:

The system runs in the background to collect this data while the custodian is filling out the initial survey. When the process is finished, the system will report on the nature and volume of the data held by individual custodians.

Collecting Data

Insight LHC also allows you to collect data automatically and move it into a secure workspace. Simply fill out the “New Collections” form and choose one or more custodians to institute automated collections.

Collections happen securely via the Internet while the custodian works on other projects. As the data is collected, it is processed and indexed for search and promotion. Data can be sent for review in Insight or to a preservation archive to hold in case it is needed at a later time.

Reports and Auditing

A significant advantage of Insight LHC over manual methods is tracking of every step taken from the initial notice through to closing the legal hold. Through its dashboard, you can monitor responses and reminders and download survey results, collection reports or promotion information.

Insight LHC also provides audit trails to help ensure the defensibility of the process and allow you to resurrect hold efforts—years later when memories fade or key employees have departed.

Insight LHC can accommodate specialized and custom reports regarding all aspects of the legal hold, data preservation and discovery process as may be required by your particular enterprise content management strategy.

Suitable for A Range of Matters

Legal hold software such as Insight LHC is suitable for cases of any size, from just a few custodians to tens of thousands, and for a wide range of matters. Among the types of cases where it can be used:

  • Civil actions. In civil litigation, legal hold technology helps reduce spoliation and costs.
  • Regulatory requests. Legal hold technology lets you take immediate action to preserve and review data in response to federal, state or international regulatory requests.
  • Internal investigations. When an internal matter warrants investigation, legal hold technology enables you to gain early insight.
  • Labor and employment. HR matters can be voluminous, but legal hold technology enables you to gather and preserve evidence efficiently.

In any of these matters, a platform such as Insight LHC can save you time and money by automating the many interrelated tasks required to perform and manage legal holds, track responses, send reminders, profile data, and preserve and review data.

The Bottom Line

In this series, I have explained why and how companies implement legal holds, when the legal hold duty arises, and what must be preserved. Perhaps the most important lesson for you to take away is that a legal hold is serious business.. Failure to properly implement and execute a legal hold can result in serious consequences for your company.

Given this, you can understand why spreadsheets, emails and other jury-rigged matters are risky methods to rely on. A simple mistake like neglecting to contact one of the key custodians, or failing to get an acknowledgment could lead to lost evidence and charges of spoliation.

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About John Tredennick

A nationally known trial lawyer and longtime litigation partner at Holland & Hart, John founded Catalyst in 2000. Over the past four decades he has written or edited eight books and countless articles on legal technology topics, including two American Bar Association best sellers on using computers in litigation technology, a book (supplemented annually) on deposition techniques and several other widely-read books on legal analytics and technology. He served as Chair of the ABA’s Law Practice Section and edited its flagship magazine for six years. John’s legal and technology acumen has earned him numerous awards including being named by the American Lawyer as one of the top six “E-Discovery Trailblazers,” named to the FastCase 50 as a legal visionary and named him one of the “Top 100 Global Technology Leaders” by London Citytech magazine. He has also been named the Ernst & Young Entrepreneur of the Year for Technology in the Rocky Mountain Region, and Top Technology Entrepreneur by the Colorado Software and Internet Association. John regularly speaks on legal technology to audiences across the globe. In his spare time, you will find him competing on the national equestrian show jumping circuit or playing drums and singing in a classic rock jam band.

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