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Efficient eDiscovery Starts with a Well-Developed Litigation Hold Process

Inefficient litigation hold process

An efficient, effective litigation hold process not only helps ensure defensibility, but also helps control costs throughout the eDiscovery process.

Litigation Hold inefficiency traps lie in wait at every step of the litigation hold process – from the initial triggering event through to when the final Release Notice is sent to custodians once a matter comes to a full conclusion. Inefficiencies at this early stage can extend a ripple effect on your entire eDiscovery workflow and budget. The good news is that those traps are easy to avoid with a little pre-planning and preparation.

The litigation hold process itself can be complex at times too: different custodians are often involved in multiple and sometimes overlapping matters, different cases may have different notice, data preservation and collection requirements, and single matters may require slightly different notices to differing custodian groups. Custodian questionnaires, an integral part of the litigation hold process, while often covering some of the same basic questions, are most effective when properly leveraged and tailored to the individual matter as well.

A comprehensive litigation hold and custodian questionnaire process can be the key to eliminating inefficiencies across your entire eDiscovery process.

Our eDiscovery inefficiency blogs thus far have addressed many items that, in excess, can cause inefficiencies— overly broad or antiquated data collection efforts, excessive search terms and marginally effective and costly search term negotiation processes, and too many cooks in the kitchen, to name a few. But in the case of litigation holds, the most detrimental inefficiencies stem not from such excesses, but from a lack of pre-established and well-developed essential elements – and in the world of eDiscovery, it all begins with the hold and preservation tasks.

And, unlike much of the eDiscovery process, this is not only easy to correct, it’s also one of the least expensive parts of the eDiscovery process itself. What’s more, when done correctly, it can actually reduce your overall costs across all of your legal events.

To keep your organization out of legal and logistical hot water, you should take a few simple steps now: establish a clear litigation hold plan and process, select an efficient and appropriate legal hold solution, create a basic template library, and of course, identify and train key personnel.

Create a Defined, Repeatable & Defensible Process

First, your process must be well-defined and repeatable. Don’t put yourself in the painful position of having to start from scratch every time a legal event occurs. Have a well-thought-out process in place in advance, and make sure it’s comprehensive from the outset. For instance, every time a new legal hold is issued, simultaneous notices should also be sent to IT and to HR so that they can take proactive and necessary steps as well to meet the preservation obligations. Save time and money by making a plan now that works – and sticking to it.

Second, make sure your process is defensible and tailored to your data policies and infrastructure so you don’t miss critical data preservation obligations that could have you facing avoidable sanctions down the road. Automatic data management and deletion policies, if not suspended were appropriate as part of your litigation hold process, for example, can wreak havoc on your Preservation efforts. We recommend using a comprehensive litigation hold system that not only notifies custodians, but also identifies appropriate data locations and flags such functions (especially auto-deletion) that could lead to loss of data that should have been preserved, which in turn, could lead to spoliation sanctions. Using technology will undoubtedly help eliminate many inefficiencies in the litigation hold process.

Lastly, your plan must be documented. Proper documentation will help you repeat and defend your litigation hold process. Accurate reporting will help you QC your legal hold process too. It’s important to ensure that your process collects the key information that you’ll need to report on to establish the defensibility of your process, such as custodian litigation hold notice send dates, acknowledgement dates and routine reminder dates to name some of the most critical points. We also recommend reviewing and updating your process and the associated documentation at least once a year.

Select a Litigation Hold Solution

One major way to curb legal hold inefficiencies from the outset is to decide which enterprise legal hold software is right for your organization. Too many organizations still rely on manually sending notification emails and using spreadsheets for tracking key activities. And while that may be understandable for very small organizations with little to no legal events, even then, that approach comes with the inherent risks and increased costs of any manual, one-off process. 

For medium and large organizations, especially those with any routine legal event needs, when it comes to scaling the litigation hold process in a repeatable, defensible, and applicable fashion, a litigation hold software solution is the only way to accomplish that with any degree of efficiency and accuracy. When you do decide to choose a litigation hold software solution, make sure your Legal and IT teams are involved in the vetting and selection process so that you chose the best option that addresses all of your organization’s needs. If you step into the wrong sized shoe, you’re going to regret it before you’ve even walked your first mile.

  • Pro Tip #1: For larger companies, we recommend selecting a solution that can connect to your enterprise directory service (e.g., Active Directory) and/or Human Resources system (e.g. SAP, Workday). Without that, you’ll be adding, editing, and removing custodians manually which very quickly can become time-consuming and error-prone. What’s more, such integrations can enable automatic preservation steps as well. We’ve watched companies struggle with this because Legal simply didn’t want to work with IT to get the service connected. Communication channels between Legal, IT, and usually HR on legal matters are important. Stop inefficiency in its tracks by letting the directory and other enterprise synchronizations do the heavy lifting.
  • Pro Tip #2: We often hear the following question: If I have a manual litigation hold system now, when do I know it’s time for an automated system? To answer this question, we recommend assessing the frequency and the severity of your legal events and considering ancillary usage of such systems as well. If you have only a couple of events per year, a manual process might work. But legal hold solutions are much more affordable than ever before and can also be leveraged for H.R., I.T. and other policy and general employee and organizational notification processes as well, further advancing essential business workflows for any size organization beyond just the litigation hold process. Ask what level of risk your organization runs by not automating such notices? What might you miss if you aren’t focused on exposures? How might we leverage such a trackable, auditable notice system beyond just litigation hold needs?

Create a Reusable Template Library

A powerful weapon in battling legal hold inefficiencies is a well-stocked template library from which you can draw upon at each step of the way. Good templates will not only jumpstart your process but will help avoid inefficiencies stemming from recreating the legal hold content wheel for each new matter. Standardized language within those templates will ensure consistency, and thereby defensibility, as well.

Start by creating reusable litigation hold templates for the standard communications steps, including the initial litigation hold notice, routine reminders and release notifications. You should create a variety of templates customized to the types of matters your organization most often faces, including HR matters, internal investigations, product liability matters, intellectual property matters, and more.

You should also create templates for Custodian Questionnaires. Different departments and different matter types usually need slightly differing CQs. Having templates created in advance (by a paralegal, for instance) and approved by an attorney ahead of time helps to streamline this process as well and helps ensure that you are leveraging your experiences and knowledge in matter over matter, consistently improving the process along the way.

  • Pro Tip #1: Make sure that your templates are digestible for custodians. If your templates are too dense with legalese and too difficult for custodians to understand, you won’t get all you can from them. And always have a contact name and number included in each notice in case the recipients have questions. (For more on how to get the most from your custodians, and who to go to before you start collecting custodian data, check out our blog on inefficiencies in Data Identification.)
  • Pro Tip #2: Be flexible with your custodian questionnaires and leverage them to the greatest extent possible. Don’t fall into the trap of limiting the scope of your CQs, they can be used not just to aid in data mapping and resource identification, but also in asking substantive questions and collecting key factual information about the matter itself too. Think of custodian questionnaires as you do custodian interviews – only more efficient and often more effective. Also, there’s no one-size-fits-all when it comes to CQs. Create different templates for different purposes and audiences (e.g., one for HR, another for Accounting, and yet another for IT).

Training is Key

Proper education and training go a long way toward reducing inefficiencies in your legal hold process. From the very beginning, make sure your team is well trained as to what could possibly trigger a legal event. Managers and other key personnel in your organization need to be trained to report adverse events. This is especially important in the medical industry; if you miss a trigger and realize months down the road that an event should have triggered a litigation hold, you’ll quickly find yourself trapped in a vortex of legal hold inefficiency—and risks. The more sophisticated and complex the organization, the more important it is to pay attention to the specific needs of different groups handling data for different matters.

And make sure you’ve defined the key roles in the litigation process well in advance. Who will be in charge of identifying custodians? Who will customize, send and track the litigation hold notices? Who will be the key contact person for custodians with questions? Every step of the legal hold process should have a responsible person identified well in advance, and those individuals must be trained, and that training kept current so that you are well prepared and avoid the chaos that will otherwise ensue.

  • Pro Tip: Anyone involved with data resources in your organization needs to study the fine print in the Terms of Service sections of your vendor agreements for outsourced data and information systems, paying particular attention to statements such as: “The data is yours, but if you stop the service, we keep it for x number of days/months/weeks. After that, the data is gone, and the responsibility will be on you.” This applies to any enterprise software, SaaS or database solution including H.R. systems, CRM or accounting systems, social media solutions, institutional databases and more.

Don’t Be Shy – Ask the Experts.

In BIA’s twenty years of helping clients manage legal holds, we have learned a thing or two about what works and what doesn’t. We are proud of our processes, tools, templates, and training, and we love to share. Our experts can help you develop a plan and document your protocols and workflows. You already have access to our litigation hold notice template and custodian questionnaire template, both of which are tried-and-true, updated by our experts who use them every day. Our legal hold software is top-notch (reach out today to schedule a demo). We can help you reduce—or even eliminate—those legal hold inefficiencies, protect your organization and reduce your overall costs, so that you can spend your time and money managing your organization instead of chasing data every time a legal event occurs.

Contributors: Barry Schwartz, Brian Schrader

Barry Schwartz, Esq., CEDS

Barry Schwartz, Esq., CEDS

Barry Schwartz, Esq., CEDS leads the advisory services group at BIA using his 25 years of experience as a litigator and consulting expert witness. As a client-facing senior advisor, he assists clients in a wide variety of areas including litigation and discovery, data retention & management, document review, regulatory compliance, privacy and cybersecurity.