Technology: Four considerations in selecting and implementing new legal holds technology

Corporate legal hold portfolios are growing, and employees are increasingly subject to multiple legal holds

If your legal hold management is built on Microsoft Excel or Access and Outlook and you are thinking that there must be a better way, don’t worry, you are not alone.                                                                                                                           

This will not surprise you. Corporate legal hold portfolios are growing, and employees are increasingly subject to multiple legal holds. Releasing recipients from a closed matter but maintaining them on other holds can be a logistical nightmare. In-house staff, responsible for issuing, tracking and managing the legal hold effort, is spending more and more time updating spreadsheets. The downstream result: increased potential risks for error and spoliation, and ultimately potential sanctions.  

Legal hold technology can allow corporate counsel to more effectively manage the legal hold effort, create a partnership with IT, make the legal hold lifecycle and process more efficient and can help to reduce risk.

Initial Considerations

If your company is considering evaluating legal hold technologies, first identify your internal business needs and requirements:

  • Are your legal holds managed internally or by case counsel?
  • What needs to be done to protect attorney client privilege?
  • How often are you issuing a legal hold?
  • How many legal holds do you have concurrently active?
  • How many custodians do you have under legal hold at any given time?
  • How many employees do you have?
  • Do you have a complex data and IT organization? 

In addition, as you move forward to assess tools to help automate the legal hold process, consider the following four factors:

  • Features and functionality
  • Integration with your e-discovery road map and practices
  • Compatibility and integration with corporate systems (such as email, records/information management, human resources databases, data security and privacy)
  • Hosted or cloud-based

Features and Functionality

Legal hold technology solutions are designed to support and manage the legal hold lifecycle. They allow for the creation and issuance of a legal hold to employees; tracking and auditing confirmations, acknowledgements and interviews; issue escalation notices and reminders; and allow for the creation and issuance of the release notice.

Issuing a legal hold with a technology solution can be as simple as using a predefined template that already describes the recipient's obligation to hold documents and data, entering case specific information and the type of records to be held, and selecting or importing a list of recipients.

Track and hold feature: Most applications are designed to track and audit the hold - more specifically, who received it and when, and who confirmed and acknowledged it and when. As you consider which application best meets your needs, also consider whether you want or need the tracking feature, and whether the track and audit features will be helpful or will create additional potential risks and issues.

Questionnaire and interview template feature: These features can help gather information from legal hold recipients close in time to issuance of the hold. Accessible to the recipient from a link in the legal hold notice, the feature allows the sender of the hold to use pre-defined templates or ask specific case-related questions, such as:

  • Where do you save data related to this matter?
  • Do you keep data on external devices or removable media?
  • Do you have hard copy documents?
  • Do you know any other employees who may have documents related to this matter? 

Collecting data: Some tools allow self-collection capabilities. If your company uses this feature, among other things, we suggest considering the following: vet the self-collection process, evaluate chain of custody, inspect for modifications to file metadata, and prepare to defend against the "Fox-Guarding-The-Henhouse" argument.

Automated reminders: Automatic reminders can be issued to recipients and are based upon a schedule you determine meets your management criteria and business need.

Integration with corporate e-discovery roadmap and practice

Some questions to consider:

  • Do you have an e-discovery technology roadmap?
  • Do you have in-house e-discovery tools for collecting, culling or processing data?
  • Will your legal hold technology integrate with existing e-discovery tools; integrate with those on your roadmap; or function as a stand-alone solution?
  • Will law department staff become the technology subject matter experts (SMEs) or will you need to rely on IT resources?

If you have an e-discovery roadmap, take the time to evaluate the features of the tool with respect to your specific legal hold procedures, and the interaction with other technology you have or plan to deploy for your e-discovery practice. Some legal hold technologies are part of larger, enterprise solutions that incorporate collection, preservation, culling, processing and even review and production.

Also consider who will ultimately be responsible for the solution. Do you have the resource available within the law department or will your subject matter expert (SME) be an IT resource?

Compatibility and integration with corporate systems

Identifying and monitoring employee movement is a pain point for many in connection with the legal hold management process. By connecting the legal hold solution to the human resources system, companies can more quickly identify employees and prepare the hold. Further, a legal hold solution can alert companies to employee movement, whether from one position to another or termination. This can help reduce the risk of spoliation that can inadvertently occur during such a transition.

Also crucial to hold management is the ability to track and protect data on IT assets. Connecting to an asset management system can allow the company to quickly identify devices used by the recipient. It can also prevent potential problems often associated with employee movement.

Other areas for compatibility and integration include automatically holding recipient email mailboxes or email archive accounts and documents hosted in corporate document and records information management systems. 

On-premise or Cloud

Legal hold solutions can be hosted on-premise within the company's corporate domain or externally in the cloud. Cloud-based solutions offer the standard features and functionality of the stand-alone internally hosted products, with pricing models that may be more appealing to companies with smaller legal hold portfolios.

Additional benefits of cloud-based solutions include: no required internal IT infrastructure, no maintenance and backups, deployment is often simple, and the pricing model is usually per month and dependent upon the number of matters and custodians.

Conclusion

Using technology for legal holds can streamline your company's efforts and make the process more efficient while reducing risk. Legal hold solutions come in all shapes and sizes. Understanding the unique circumstances of your company's environment and the real-world pain points in managing your company's processes are critical path steps to leveraging the power that legal hold technology offers.

Contributing Author

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John D. Martin

John D. Martin is a litigation partner at Nelson Mullins Riley & Scarborough LLP, and the practice leader for the Firm’s...

Additional Contributors: Allan Crawford

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