When litigation is anticipated or imminent, companies are required to take reasonable steps to preserve potentially discoverable evidence. Companies that fail to meet this requirement can suffer severe sanctions up to dismissal of their claims and defenses.
One good way to meet this obligation is to issue a legal hold, alerting custodians and IT staff that documents, email and other data relating to anticipated litigation should be held or preserved until further notice. Emails need to be sent, litigation needs to be tracked and the hold must be managed until the suit is resolved or the threat abates. Managing one hold involving many employees can be difficult, and often a company will have several to manage — sometimes dozens or hundreds.
Even so, many legal professionals still manage legal holds using email, spreadsheets or other jury-rigged systems. The better approach is to use a software platform specifically designed to manage the process of creating, sending, tracking and releasing legal holds. By automating and standardizing the legal hold process, these software applications can reduce the risk of sanctions for spoliation.
There are several legal hold platforms on the market that allow you to more easily manage legal holds, data collection and data preservation; some also help perform early case and data assessment. Most will also let you promote collected data to an e-discovery review platform.
The core function of a legal hold platform is to create, send and track legal hold notifications and set automated reminders for follow-up. A typical platform will include a dashboard where you can monitor your existing holds and create new ones.
This process should require just a few steps. The platform will prompt you for some basic information about the case and ask you to choose which of the custodians to notify, and you can choose custodians from your company’s directory system. That means that, when choosing a platform, you should be sure that it integrates with your company’s directories, such as Active Directory, Office 365 or Veritas Enterprise Vault. This will allow you to choose custodians by title, department, location or even workgroup.
The next step will be to draft the hold notice. You should be able to do this within the platform. You will tailor the text of the notice to your needs and situation. Legal holds may cross borders, so some systems also support various foreign alphabets.
In some cases, you will want to include a survey with your hold notice. Some platforms allow you to choose from a list of standard questions or create your own. The survey is used to elicit information about the locations and types of data held by each custodian or to ask about a custodian’s knowledge of events pertaining to the claim.
A final step will be to set up automated reminders. These can be used both for asking custodians to acknowledge that they understand their hold obligations and for periodically reminding them that the hold remains in effect.
In addition to sending notices and reminders, some legal hold systems can also report on the types and volumes of data on a custodian’s computer. Typically, the system will run 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.
Another function of a legal hold platform is to streamline or automate the collection of data and move it into a secure workspace. If you are using a cloud-based platform, it can collect securely via the internet from custodians anywhere in the world.
As the data is collected, it is processed and indexed for search and promotion. Data can then be sent for review in an e-discovery platform or to a preservation archive to hold in case it is needed later.
A significant advantage of legal hold technology over manual methods is tracking of every step taken from the initial notice through to closing the legal hold. Through the legal hold platform, you can monitor responses and reminders and download survey results, collection reports or promotion information.
The system should also provide audit trails to help ensure the defensibility of the process and allow you to resurrect hold efforts — even years later when memories fade or key employees have departed.
Generally, legal hold software is suitable for cases of any size, from just a few custodians to tens of thousands, and for a wide range of matters, including civil actions, regulatory requests and internal investigations. Legal hold software can be particularly useful in employment matters, where documentation can be voluminous and widely dispersed.
In any of these matters, the platform 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.
A legal hold is serious business. Failure to properly implement and execute a legal hold can result in severe consequences for your company. Given this, you can understand why spreadsheets, emails and other jury-rigged methods are risky. One simple mistake could lead to lost evidence and charges of spoliation.