Corporate lawyers often shoulder the burden of managing the entire hold process for their organization.
This means that in addition to everything else, they must issue, execute and ensure compliance with required legal stays in the event of anticipated litigation, responses to regulatory requests, internal investigations and due diligence activities.
These processes, when done manually or with an outdated solution, can be intimidating and time-consuming, and involve:
- Hunt down callous guardians
- Monitoring overlapping legal stays in multiple cases
- Update spreadsheets to track custodians
- Emphasize missing data
- Worrying about the fairness of this legal suspension process
While implementing legal holds requires preparation, the right legal holds software can ease your workload and ensure that all of your records are properly retained for legal defense.
Create a defensible legal restraint process
A legal hold (also known as a litigation hold) requires employees to retain certain records and information that may be relevant to a pending or planned lawsuit or investigation. The duty to preserve information dictates that information not be altered, destroyed or deleted. Any of these could result in permanent data loss, commonly known as ‘spoliation’.
Spoliation can easily result in eDiscovery penalties. In 2003, Judge Shira Scheindlin wrote the landmark decision in Zublake vs. UBS Warburg IV, which became the black letter law regarding legal deductions. Judge Scheindlin wrote: “Once a party reasonably anticipates litigation, it should suspend its routine document retention/destruction policy and implement a ‘litigation hold’ to ensure the preservation of relevant documents.
Federal Rule of Civil Procedure 37(e) gives courts the power to sanction parties for permitting or causing the theft of discoverable information. This adverse inference instruction could have a devastating effect on the outcome of the case. In addition, the court can go further, dismiss the action or order a default judgment as a sanction for intentional spoliation.
A legal hold is the first line of defense in protecting your organization against possible theft of evidence and the resulting penalties.
Implementation of a legal suspension
Legal departments should establish a legal stay process that they can implement quickly and consistently, because time is running out when litigation is anticipated.
The first step to defensible legal holds is to implement a data retention policy and practice good data hygiene. A retention policy allows organizations to minimize the amount of data they hold, and the less data you have, the less you have to worry about preserving it.
Once litigation is reasonably anticipated, you must submit a notice of legal suspension and suspend your routine data retention policies. The Legal Department sends the Legal Preservation Order to persons who may have relevant data (“data custodians”), ordering them to retain their data from that point forward.
Unfortunately, you cannot assume that data custodians will quickly see your legal block and take the necessary action. To create a defensible process that will stand up to judicial scrutiny, you’ll want data custodians to send notifications acknowledging receipt of the suspension, and you’ll want to proactively address any lack of response.
Finding an Appropriate Legal Hold Technology
Legal hold software solutions can simplify this process. They can automate routine tasks, minimize your manual work, and help you manage the legal blocking process in a strategic and defensible way. Legal Hold software creates efficiencies in:
- Issuance of deductions,
- Interview the guards
- Preserve relevant information
- Send automatic reminders and notifications
- Compliance monitoring
- Create in-depth tracking and audit trail reports
The right legal hold software can make a huge difference in the implementation and accuracy of your legal hold process.
7 things to look for in a legal hold solution
When considering potential legal hold solutions, assess their suitability by asking these seven questions.
1. Is it secure?
Safety is paramount in the process of legal restraint. Before entrusting a software vendor with your organization’s data, do your due diligence. You’ll want to get the go-ahead from IT for your software of choice. Make their job easier by ensuring that the solution you are considering includes end-to-end encryption, two-factor authentication, client isolation via network security, permission-based user and access roles , as well as virus scanning and malware detection measures.
2. Can it automate communications?
Your ideal solution will automate and manage communications with any number of custodians in multiple instances. Messaging templates (emails), questionnaires and automatic scheduled reminders make communication seamless, saving time and reducing risk.
3. Is it user-friendly?
An intuitive and easy-to-use interface means that everyone will feel comfortable using the software, which increases the chances of full adoption of the software. This goes a long way in ensuring custodian responsiveness and compliance, as custodians will know what is expected of them and know how to comply.
4. Can it track responsiveness?
You’ll want a reporting feature that shows which custodians responded to your block requests and tracks the number of blocks per custodian and blocks per lawyer, as well as the overall status of all legal blocks. You want to be able to see the big picture at a glance so you can escalate and address any non-compliance.
5. Can it, if necessary, keep the data by collecting and downloading it in a transparent way?
Data is available in a wide range of formats from various repositories and systems. You need a legal hold solution that can keep data in place in every file format imaginable. When in-place retention isn’t possible, you’ll want to be able to collect data easily and quickly. That means you’ll want direct connectivity to various online repositories, including Microsoft 365, Google, and social media, with drag-and-drop upload and cloud upload for Microsoft Exchange and Google G-Suite.
6. Does it create an audit trail?
If an adversary were to challenge your ESI preservation, the best way to demonstrate the fairness of your legal hold process is to perform a complete and accurate audit trail. Make sure any software you consider for legal holds can create full audit trails of when you put a hold in place, issued hold notices to custodians, sent reminders, and more.
7. Does it come with training and support?
Even the fanciest features are no good if your chosen software crashes or is difficult for your team to use. The best legal hold software comes with full onboarding support and ongoing training, customer support, and technical assistance.
Why you need a smart legal hold solution
Smart legal preservation solutions can ease the burden of managing multiple and voluminous preservation issues, improve the accuracy of your preservation efforts, and free up your valuable time for more strategic work.