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Managing Legal Holds

By Scott M. Giordano

Organizations have a common law duty to preserve all potentially relevant electronically stored information (ESI) when litigation becomes reasonably foreseeable. While defensible ESI preservation is one of the most critical phases of e-discovery, many legal professionals cringe when they hear the term “legal hold” since the management (and enforcement) process is often perceived as a necessary evil fraught with inefficiency and frustration.

This is not a new issue, but with so much recent news and attention being focused on the latter stages e-discovery, the importance of putting in place a defensible, scalable legal hold process has been somewhat overshadowed. The reality is that many in-house legal teams remain limited by reactive legal hold approaches that feature e-mail and spreadsheets as management tools and are defined by an over reliance on manual processes. What's more, preservation-related failures account for the highest percentage of sanctions that are issued.

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