Editor:Please explain why the legal hold process is a serious issue in electronic discovery.
Heldt: Perhaps the most important reason is that improperly executed holds can lead to crippling sanctions or adverse jury verdicts. Pressure is increasing every day for corporations to keep tight control of their electronically stored information and other relevant information when they become aware of an impending legal event. As litigation volume expands, managing holds can become daunting, costly, and disruptive to business operations. Companies recognize these difficulties and the importance of properly executed holds, but they struggle with the daily reality of handling the process.
Editor: Why do organizations find the legal hold process such a challenge?
Heldt: Over the years, we have observed that our clients face two main areas of difficulty. The first obstacle is determining what the legal hold process should be for their particular organization. After that process is established and documented, they are further challenged with how they will support it. This involves not only legal and IT staff but technology as well.
Editor: What elements make the process so complicated and difficult?
Heldt: Managing the legal hold process for hundreds of holds and thousands of custodians can be a problematic task, and a costly one. The entire legal hold management process must be enforced from inception to completion. It begins with identifying trigger circumstances that are likely to give rise to future litigation and the duty to preserve related records. It also includes communicating to the workforce what to do and when; determining how legal hold notices should look and what content is needed; and establishing how to track people responding to the hold. The challenge also involves managing the collection of relevant data over the life of a legal hold with an understanding of what needs to be collected, from whom, by whom, and when.
Editor: Do you have some tips that help address this complexity?
Heldt: In addition to following a documented process, we urge our clients to plan in advance and get it right from the start with a clear scope. Choosing only relevant custodians and data systems early in the process prevents unnecessary data retention and reduces the ultimate cost of managing the data. And we emphasize the importance of creating a system that specifically fits their organization and simplifies day-to-day support of their legal hold process.
Editor: How does a legal department go about determining what process is best for their company?
Heldt: It begins with a dialogue with IT to ensure a common understanding about the difference between backups and archiving as well as the risks and costs associated with over-retaining and under-retaining data. In addition, it greatly simplifies the scoping process when a Content Map is developed that documents the locations of various data repositories, the nature of the data and the custodians. Also, standardization should always be emphasized so that custodian identification, notice content and notification processes are consistent.
Editor: How important is communication in all this?
Heldt: Extremely important, on several levels. For example, you want to train employees to recognize events that indicate a hold is needed and retain privilege by notifying attorneys. This is possible only when there is a culture of disclosure, and employees have clear paths to interact with counsel. You also want preservation instructions that people will pay attention to and can understand. These instructions should clarify the types of documents to retain and any relevant date ranges. In addition, custodians must have an easy, reliable and auditable way to indicate their compliance. Technology that can support these communications make the process easier, repeatable and defensible.
Editor: What are some key components that should be part of the process?
Heldt: Identifying the people and applications to include on the legal hold, and issuing the hold and forensically preserving data, if necessary. You need custodians of the data to acknowledge that they have received the notice, and you need escalation policies for non-compliance. Monitoring the hold throughout its life is crucial, and it's important to release the hold when there is no business utility for maintaining it. Of course before you release a hold, you want to always make sure it won't cause the inadvertent destruction of records potentially related to other cases.
Editor: In maintaining a legal hold, isn't it a challenge to keep up with employees who leave the company or relocate to another division or location?
Heldt: Yes, and this is one of many areas where technology can help. Automated integrations with HR and IT help the legal department keep track of its dynamic workforce and the systems and applications they use. You don't want IT to routinely wipe a terminated employee's laptop when it contains relevant data! Information gleaned from these integrations can make sure that both legal and IT follow due diligence to maintain the integrity of a legal hold.
Editor: What other ways does technology play a role?
Heldt: In addition to sending effective notifications and tracking acknowledgements, automated systems can monitor the legal hold, send reminders and even escalate to management when custodians fail to acknowledge the hold. Technology can expedite interviews with data custodians, whether by phone, online or in person. Collection management systems can help track what has been collected from whom, when it was collected and where is it stored. All this automation minimizes business disruption and provides a full audit trail to prove that the process is being followed.
Editor: Tell me about your relationship with Mitratech and why you partnered together to develop technology to support this process.
Heldt: It's important to select a provider you can trust, and Mitratech's long-term track record in corporate legal technology is a good fit with Kiersted's 26-year tradition of building solutions designed to meet specific needs. At Kiersted, our legal technology consulting practice is focused on maximizing the capabilities of software that our clients already own. This approach minimizes change management and training issues and makes it easier to obtain buy-in and cooperation. It also helps avoid large additional capital expenditures that are so unwelcome in today's economic climate.
As the central data repository for an organization's legal information, the matter management system is the ideal foundation for a legal hold process. We wanted to work with a partner that provided open architecture so that, whether a company uses Mitratech's TeamConnect or another matter management system of their choice, they can still use and benefit from the flexibility, power, and expandability of TeamConnect Legal Hold.
Our company has a history in the eDiscovery business of using our experience to help corporations create standards in their organizations for processing, production and review of documents once the discovery process has begun.
Editor: In what ways does TeamConnect Legal Hold make the process easier?
Heldt : TeamConnect Legal Hold provides easy-to-use templates to standardize notification and interview content. Dynamic workflows prevent notifications being sent without proper review and approval, and the scheduling feature totally automates the notification, escalation, and reminder process. Online interviews quickly gather information from custodians, and you can monitor and record collection progress. Effective dashboard statistics provide a real-time overview of the entire legal hold picture, spanning multiple matters and custodians. The net effect of all this automation and centralization is to help the legal department support their defensible legal hold procedures.
Editor: How does integrating the legal hold process with a matter and spend management solution reduce the risks and control the costs of legal hold?
Heldt: A client's matter management system ideally includes not only matter-related information but cost information as well. If you can marry the legal hold information to both of these important silos of information, it makes analytical tasks much easier and provides transparency over the entire process. Centralized information helps our clients get eDiscovery requests right at the beginning, which makes a big difference later on. This system provides practical ways to avoid risks, sanctions and fines by ensuring that electronically stored information is not inadvertently destroyed, discarded, or changed. TeamConnect Legal Hold streamlines the entire process, from identifying where relevant information resides to issuing hold orders and tracking custodians, responses, amendments, documents, and hold status right up to the release of the hold. It gives the legal department a bird's eye view of all holds across all matters and the cost associated with the entire life cycle.
Kiersted's comprehensive approach to eDiscovery is all about using technology to make the complicated seem simple. We develop technology and services to help legal departments remain flexible as needs and resources change. TeamConnect Legal Hold helps corporate legal departments fulfill the duty to preserve using a defensible process, and it provides the visibility and control they need to support a successful legal hold strategy as part of their overall eDiscovery initiative.
Published April 3, 2011.
