Eliminating Chaos in e-Discovery Preservation Through Technology, Workflows And Automation

At its core, a legal hold is a notification, often an e-mail, stating that a lawsuit has commenced or is reasonably anticipated and the recipient of the e-mail must preserve all data potentially related to the matter. Simply issuing a legal hold notification does not equate to a defensible process.

While issuing, monitoring and documenting legal holds is fairly standard, different sizes and types of organizations have different priorities when preserving electronically stored information (ESI). Large organizations, for example, typically have hundreds or thousands of employees dispersed geographically and spread across business units. Legal teams need to be able to efficiently create, acknowledge and track all of the legal holds. Software can automate this process, as well as integrate with corporate information systems, such as HR and asset management, so that employee information can be quickly updated without time-consuming manual intervention or redundant data entry.

For small and medium-sized organizations, where individuals tend to serve in a variety of functions and where budget and time constraints may limit training, an intuitive user experience is paramount. All parties, whether attorneys, paralegals or custodians, need to be able to function quickly and effectively in the application from the very beginning.

All organizations, regardless of their size or litigation profile, can benefit from a solid legal hold process that automates reminders and tracking and produces documentation for demonstrating a defensible process. Manual systems are not only impractical in today's environment, where increasingly large stores of data are housed and transmitted electronically, but they also pose significant risks.

Legal Hold Software Considerations

Following are the five essential considerations for legal teams to apply when evaluating legal hold software for their organization:

1. Ease of use.
2. High level of visibility into all preservation-related activities.
3. Automation of the entire legal hold lifecycle.
4. Documentation/audit trail of every step in the process.
5. Integration with other systems that manage the organization's information.

Consideration 1: Ease of Use

With legal hold software, there are two primary groups: 1) “Users,” or the legal and IT teams who manage the issuance of holds, monitor the process and run reports; and 2) “Custodians,” who receive the hold notices and interact with the software to provide the requested information. In most organizations, it's impractical to have a point person onsite to help individuals muddle through software that's difficult to use. Custodians need to be able to open the application, follow some basic internal guidelines and quickly fulfill their obligations. If hold recipients can't function in the software without getting frustrated, they will simply walk away ' and that can turn into a big headache for legal teams.

In addition, the legal hold software should improve efficiency with features like reusable templates, built-in workflows that guide users through a series of sequential steps, and dashboards that graphically represent the process and make it easy for users to quickly drill down into specific areas.

Consideration 2: Visibility

Any solid legal hold software application should allow users to see the state of the hold portfolio at any point in the preservation process. The application should easily track holds, acknowledgments, reminders, re-issuances and releases. It should also allow for the creation and issuance of automated reminders on a predetermined schedule, generating reports on who has or has not responded. This technology driven process should make it easy to specify which custodians are associated with which holds as well as show the current status of custodians who may be involved in multiple matters. For multinational organizations, it may also be important to generate global reports to see who is on hold within each business unit, in specific geographical locations, and whether any unique issues, such as international privacy requirements, are associated with a particular hold or custodian.

In e-discovery, visibility equates to transparency, which bolsters defensibility and promotes efficiency. Having increased visibility through configurable dashboards allows users to access all of the information needed in a single location without having to manually track down the information. It also provides a more efficient way for legal team members monitor the progress of a hold or track holds across multiple matters, all without picking up a phone.

Consideration 3: Automation

Automation is one area where technology's power stands out. The goal here is to leverage the latest technology while keeping things as simple as possible for the user. Matters typically change over time. As more custodians are added to a hold, the complexity and effort required to manually track the process increases exponentially. A single custodian may have five or six data sources, a multinational matter can present language barriers, or a certain percentage of custodians in just about any matter are going to be non-compliant. Automation prevents legal teams from becoming overwhelmed by all of these contingencies, saves time, and ensures consistency and repeatability.

Areas of the legal hold process that can be automated include:

• Legal hold templates. Users should be able to develop customized templates depending on case type or legal objective and then save the templates for reuse on similar matters. For example, a legal team may use different templates for IP cases or tort cases. There's no need to repeat the process of creating a hold from scratch for each new matter.
• Custodian surveys and questionnaires. Apart from the benefit of getting the required information from custodians in an efficient and standardized manner, questionnaires or surveys can help custodians better understand what a hold means and what it covers. They also help legal teams learn more about the matter and its potential scope. Having the responses to a questionnaire organized in electronic form can be more useful than relying on notes from a face-to-face interview, as the information can be automatically added to the custodian and hold.
• Dynamic tags. Tags are identifiers that attach to a legal hold, such as attorney name, paralegal name, brief description of a matter or the matter name. These can be entered once, and then the software will automatically attach those tags to all of the hold notices, as well as to any other communications, such as reminders and reissued holds that are sent out. This helps prevent errors when a paralegal or attorney goes into an unfamiliar case for the first time to issue a hold. It also expedites the hold creation process by eliminating tedious, repetitive information entry.
• Automated workflows. Establishing automated workflows can ensure approvals are received at specified steps in the hold process before moving forward. They can also ensure copies of holds and interviews are automatically issued to designated recipients. For example, a specific workflow can ensure that an attorney approves a hold notice and associated interview before it's issued. Legal hold software excels at enforcing logic and can prevent users from closing a matter until all the required steps have been completed and documented according to predetermined criteria. For most organizations, that will mean all interviews have been completed by custodians and all litigations holds associated with the matter have been released.
• Automated reminders and escalation notices. The legal hold process goes well beyond a single issuance of a hold notification. It's important to keep in mind that custodians have day-to-day business responsibilities and will likely need to be reminded of their hold obligations from time to time. A legal hold software application should allow users to automate such notices on a predetermined schedule at the outset of the matter, so legal team members don't have to track and manage these communications manually. Beyond simple reminders, escalation notices that are sent directly to a custodian's supervisor can be useful in getting non-responsive custodians to take a requested action.

Consideration 4: Documentation

This may not seem so important at the onset of a matter, but it is almost always crucial at the end. It's just as important ' perhaps even more important ' to correctly document work as it is to perform the work. Thorough documentation is necessary to demonstrate the integrity of the entire legal hold process. A solid legal hold application can automatically itemize each discrete action, including dates, the individuals involved, and so on. If the legal team ever faces an allegation of spoliation (i.e., violation of the duty to preserve relevant evidence) or other e-discovery failures, solid documentation will allow the organization to defend its processes with clarity and authority.

For very large organizations, in particular, automating the documentation of preservation efforts is crucial. A single legal matter can involve terabytes of data, months or years of activity, and large teams of IT and legal staff, the composition of which is likely to change frequently. This is too much to keep track of manually. Organizations need a centralized repository where people from all areas ' legal, IT, management, outside counsel, vendors ' can go to monitor matter the status, share information and retrieve documentation.

Courts require organizations to effectively defend corporate preservation processes. Legal hold software can automate and streamline those processes so the documentation happens automatically.

Consideration 5: Integration with Other Systems

The legal hold software application should be able to readily “talk” and share data with internal information systems, such as HR, data management, collaboration systems (i.e., SharePoint) and authentication services (i.e., Active Directory). For instance, interfacing the legal hold software with an organization's HR system can help ensure employment changes, such as terminations, retirements, new assignments and leaves of absence, are updated at regular intervals, preferably daily, so legal can keep track and act on potential impacts on existing holds. Failing to stay on top of these changes can easily result in data spoliation. Integration can also make it possible to run “historical searches” to see where a custodian has been employed in the organization at various points in time.

Integration with authentication services, such as Active Directory, makes it possible for users to use their domain password to log in to the legal hold system. This allows legal hold software application to be configured so the user isn't prompted to provide log in credentials at all. The bottom line is that integration of multiple automated e-discovery processes helps eliminate redundancy, streamlines the preservation process and reduces the potential for missteps along the way.

Conclusion

Preservation in e-discovery is critical to maintaining defensibility. Failure is not something that can be corrected later. Organizations concerned with cost, efficiency and risk mitigation should not rely on manual processes to fulfill their preservation obligations. Legal hold software can address these challenges by automating and tracking every step from issuance to release. It can also provide the documentation and integration capabilities that are critical for supporting a consistent, repeatable, defensible preservation process that can withstand judicial scrutiny.

Beth King is senior litigation paralegal for Vestas-American Wind Technology, Inc. She has extensive experience preparing for and attending trials, arbitrations and hearings and has been an instructor for legal professionals across the country. Beth oversees Vestas' deployment of Exterro's Fusion Legal Hold' hosted in the cloud. Thomas F. Mullane is an e-Discovery specialist for United Technologies. He is a founding member of the Electronic Discovery Team, tasked with developing in-house processes and procedures for handling electronic discovery for all UTC business units, and directly supports UTC's deployment of Exterro Fusion' for legal hold and workflow management.

Organizations subject to potential lawsuits or investigation require a process for preserving information that may prove relevant to the matter. Yet for many organizations, the preservation process is often chaotic, time-consuming and error-prone. A recent eDJ Group survey found that “almost a third [of respondents] track the [legal hold] process via spreadsheet, while another third don't track the process at all.” This reliance on manual processes creates glaring inefficiencies, and the lack of automated tracking mechanisms exposes organizations to costly mistakes and potential judicial sanctions.

How can organizations eliminate the chaos and risks in preservation for e-discovery? Technology and process can make a big difference, especially when simplifying and streamlining the entire legal hold process, from issuance to release. This article explores some of the key considerations for applying technology to defensibly eliminate the chaos often encountered during preservation.

Organizational Requirements

At its core, a legal hold is a notification, often an e-mail, stating that a lawsuit has commenced or is reasonably anticipated and the recipient of the e-mail must preserve all data potentially related to the matter. Simply issuing a legal hold notification does not equate to a defensible process.

While issuing, monitoring and documenting legal holds is fairly standard, different sizes and types of organizations have different priorities when preserving electronically stored information (ESI). Large organizations, for example, typically have hundreds or thousands of employees dispersed geographically and spread across business units. Legal teams need to be able to efficiently create, acknowledge and track all of the legal holds. Software can automate this process, as well as integrate with corporate information systems, such as HR and asset management, so that employee information can be quickly updated without time-consuming manual intervention or redundant data entry.

For small and medium-sized organizations, where individuals tend to serve in a variety of functions and where budget and time constraints may limit training, an intuitive user experience is paramount. All parties, whether attorneys, paralegals or custodians, need to be able to function quickly and effectively in the application from the very beginning.

All organizations, regardless of their size or litigation profile, can benefit from a solid legal hold process that automates reminders and tracking and produces documentation for demonstrating a defensible process. Manual systems are not only impractical in today's environment, where increasingly large stores of data are housed and transmitted electronically, but they also pose significant risks.

Legal Hold Software Considerations

Following are the five essential considerations for legal teams to apply when evaluating legal hold software for their organization:

1. Ease of use.
2. High level of visibility into all preservation-related activities.
3. Automation of the entire legal hold lifecycle.
4. Documentation/audit trail of every step in the process.
5. Integration with other systems that manage the organization's information.

Consideration 1: Ease of Use

With legal hold software, there are two primary groups: 1) “Users,” or the legal and IT teams who manage the issuance of holds, monitor the process and run reports; and 2) “Custodians,” who receive the hold notices and interact with the software to provide the requested information. In most organizations, it's impractical to have a point person onsite to help individuals muddle through software that's difficult to use. Custodians need to be able to open the application, follow some basic internal guidelines and quickly fulfill their obligations. If hold recipients can't function in the software without getting frustrated, they will simply walk away ' and that can turn into a big headache for legal teams.

In addition, the legal hold software should improve efficiency with features like reusable templates, built-in workflows that guide users through a series of sequential steps, and dashboards that graphically represent the process and make it easy for users to quickly drill down into specific areas.

Consideration 2: Visibility

Any solid legal hold software application should allow users to see the state of the hold portfolio at any point in the preservation process. The application should easily track holds, acknowledgments, reminders, re-issuances and releases. It should also allow for the creation and issuance of automated reminders on a predetermined schedule, generating reports on who has or has not responded. This technology driven process should make it easy to specify which custodians are associated with which holds as well as show the current status of custodians who may be involved in multiple matters. For multinational organizations, it may also be important to generate global reports to see who is on hold within each business unit, in specific geographical locations, and whether any unique issues, such as international privacy requirements, are associated with a particular hold or custodian.

In e-discovery, visibility equates to transparency, which bolsters defensibility and promotes efficiency. Having increased visibility through configurable dashboards allows users to access all of the information needed in a single location without having to manually track down the information. It also provides a more efficient way for legal team members monitor the progress of a hold or track holds across multiple matters, all without picking up a phone.

Consideration 3: Automation

Automation is one area where technology's power stands out. The goal here is to leverage the latest technology while keeping things as simple as possible for the user. Matters typically change over time. As more custodians are added to a hold, the complexity and effort required to manually track the process increases exponentially. A single custodian may have five or six data sources, a multinational matter can present language barriers, or a certain percentage of custodians in just about any matter are going to be non-compliant. Automation prevents legal teams from becoming overwhelmed by all of these contingencies, saves time, and ensures consistency and repeatability.

Areas of the legal hold process that can be automated include:

• Legal hold templates. Users should be able to develop customized templates depending on case type or legal objective and then save the templates for reuse on similar matters. For example, a legal team may use different templates for IP cases or tort cases. There's no need to repeat the process of creating a hold from scratch for each new matter.
• Custodian surveys and questionnaires. Apart from the benefit of getting the required information from custodians in an efficient and standardized manner, questionnaires or surveys can help custodians better understand what a hold means and what it covers. They also help legal teams learn more about the matter and its potential scope. Having the responses to a questionnaire organized in electronic form can be more useful than relying on notes from a face-to-face interview, as the information can be automatically added to the custodian and hold.
• Dynamic tags. Tags are identifiers that attach to a legal hold, such as attorney name, paralegal name, brief description of a matter or the matter name. These can be entered once, and then the software will automatically attach those tags to all of the hold notices, as well as to any other communications, such as reminders and reissued holds that are sent out. This helps prevent errors when a paralegal or attorney goes into an unfamiliar case for the first time to issue a hold. It also expedites the hold creation process by eliminating tedious, repetitive information entry.
• Automated workflows. Establishing automated workflows can ensure approvals are received at specified steps in the hold process before moving forward. They can also ensure copies of holds and interviews are automatically issued to designated recipients. For example, a specific workflow can ensure that an attorney approves a hold notice and associated interview before it's issued. Legal hold software excels at enforcing logic and can prevent users from closing a matter until all the required steps have been completed and documented according to predetermined criteria. For most organizations, that will mean all interviews have been completed by custodians and all litigations holds associated with the matter have been released.
• Automated reminders and escalation notices. The legal hold process goes well beyond a single issuance of a hold notification. It's important to keep in mind that custodians have day-to-day business responsibilities and will likely need to be reminded of their hold obligations from time to time. A legal hold software application should allow users to automate such notices on a predetermined schedule at the outset of the matter, so legal team members don't have to track and manage these communications manually. Beyond simple reminders, escalation notices that are sent directly to a custodian's supervisor can be useful in getting non-responsive custodians to take a requested action.

Consideration 4: Documentation

This may not seem so important at the onset of a matter, but it is almost always crucial at the end. It's just as important ' perhaps even more important ' to correctly document work as it is to perform the work. Thorough documentation is necessary to demonstrate the integrity of the entire legal hold process. A solid legal hold application can automatically itemize each discrete action, including dates, the individuals involved, and so on. If the legal team ever faces an allegation of spoliation (i.e., violation of the duty to preserve relevant evidence) or other e-discovery failures, solid documentation will allow the organization to defend its processes with clarity and authority.

For very large organizations, in particular, automating the documentation of preservation efforts is crucial. A single legal matter can involve terabytes of data, months or years of activity, and large teams of IT and legal staff, the composition of which is likely to change frequently. This is too much to keep track of manually. Organizations need a centralized repository where people from all areas ' legal, IT, management, outside counsel, vendors ' can go to monitor matter the status, share information and retrieve documentation.

Courts require organizations to effectively defend corporate preservation processes. Legal hold software can automate and streamline those processes so the documentation happens automatically.

Consideration 5: Integration with Other Systems

The legal hold software application should be able to readily “talk” and share data with internal information systems, such as HR, data management, collaboration systems (i.e., SharePoint) and authentication services (i.e., Active Directory). For instance, interfacing the legal hold software with an organization's HR system can help ensure employment changes, such as terminations, retirements, new assignments and leaves of absence, are updated at regular intervals, preferably daily, so legal can keep track and act on potential impacts on existing holds. Failing to stay on top of these changes can easily result in data spoliation. Integration can also make it possible to run “historical searches” to see where a custodian has been employed in the organization at various points in time.

Integration with authentication services, such as Active Directory, makes it possible for users to use their domain password to log in to the legal hold system. This allows legal hold software application to be configured so the user isn't prompted to provide log in credentials at all. The bottom line is that integration of multiple automated e-discovery processes helps eliminate redundancy, streamlines the preservation process and reduces the potential for missteps along the way.

Conclusion

Preservation in e-discovery is critical to maintaining defensibility. Failure is not something that can be corrected later. Organizations concerned with cost, efficiency and risk mitigation should not rely on manual processes to fulfill their preservation obligations. Legal hold software can address these challenges by automating and tracking every step from issuance to release. It can also provide the documentation and integration capabilities that are critical for supporting a consistent, repeatable, defensible preservation process that can withstand judicial scrutiny.

Beth King is senior litigation paralegal for Vestas-American Wind Technology, Inc. She has extensive experience preparing for and attending trials, arbitrations and hearings and has been an instructor for legal professionals across the country. Beth oversees Vestas' deployment of Exterro's Fusion Legal Hold' hosted in the cloud. Thomas F. Mullane is an e-Discovery specialist for United Technologies. He is a founding member of the Electronic Discovery Team, tasked with developing in-house processes and procedures for handling electronic discovery for all UTC business units, and directly supports UTC's deployment of Exterro Fusion' for legal hold and workflow management.