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The Basics of a Legal Hold

legal hold software

BIA has long been a leading provider of legal hold software and preservation solutions. From proprietary in-house litigation hold solutions to the enterprise legal hold device Solis to its TotalDiscovery SaaS application, BIA has been at the forefront of helping corporations manage their legal hold and preservation obligations.  If a party fails to implement a litigation hold, that may lead to sanctions or even the dismissal of the case.

So, what’s a legal hold, and what is required?

Well, as with all things legal, there is a lot of nuances, but we’ve boiled it down to six simple things to consider, what we call the basics of a legal hold, whether your organization is manually managing the legal hold process or using legal hold software:

  1. Once a triggering event occurs, notify custodians as soon as possible that they have an obligation to preserve documents and data.
  2. Make sure that you receive an affirmative acknowledgment that custodians understand their obligation and intend to comply. 
  3. Work with IT to ensure automated data deletion tasks are appropriately suspended and relevant data is set aside.
  4. Use custodian questionnaires to help identify people, data and resources that should be subject to the hold.
  5. Remind custodians on a regular basis that the hold continues and that they still have an obligation to preserve. 
  6. Record and track everything. 

The basics of a legal hold seem pretty straight forward, especially since we’ve skipped describing what the litigation hold memo should actually say but are indeed just that, straight-forward and when followed, will go a long way to keep you out of legal preservation-related trouble.

Legal Hold software can help.

But many companies think that they are required to purchase complicated systems to manage that process.  But in fact, most industry surveys (and our personal experience) show that more than half the companies still use email to notify custodians and spreadsheets to track the process. 

To be clear, there’s nothing inherently wrong with a manual process, but when we talk with our clients, we hear how much time this manual process takes, how difficult it is to keep accurate records over time, and how difficult it can be to get custodians to acknowledge the holds using just plain emails. The first item is the “hidden cost” of a manual legal hold process, and the latter two are just the kind of thing that opposing counsel love to dig in to.

So it turns out that using legal hold software is indeed helpful and a good route to take so long as it is not overcomplicated and instead is designed following these basics of a legal hold.

Where automation can really help, and where our clients tell us that BIA’s legal hold software shines is in the automation of certain key aspects of the process – primarily the automatic sending of emails reminding custodians of their legal hold obligations and the automated “nag notices” sent to those custodians who don’t comply.

Plus there are a whole host of other automated functions that BIA includes in its legal hold solutions, especially today with so many companies using Office 365. BIA has developed several specialized scripts and plug-ins that connect Office 365 Security and Compliance Center with Active Directory and the overall legal hold process. Read more about how to Maximize eDiscovery in Office 365 and maintain compliance with all aspects of the overall eDiscovery process.