Legal Hold blogs exist for basically two reasons: to share information; and to promote a product and/or service; this blog is intended to do just that, hopefully in a helpful and successful manner. I recently noticed a comment in one of the many blogs I read that actually spoke to truth in a simple way; it was a Legal Hold software blog that gave pretty much the standard pitch about why its product was a good thing for a company to invest in. But the closing sentences caught my eye, having laid out legal hold processes the software performs and then saying basically “…let the software shoulder the burden of notification. The rest is up to you.”

The rest is up to you. That is exactly my philosophy, although in a somewhat different perspective. Their basis is spot on – a well-designed legal hold software application is essential to fulfilling the overall obligations of a company’s legal hold obligations, but it is not the end-all, be-all of the program. Rather, it serves as one component of the well-constructed legal hold program.

The legal hold program requirements from both the legal side and the administrative side are complex and time-consuming; companies today cannot afford to place these demands on an employee who is unfamiliar with those requirements, nor has the available time to build and support a defensible program. A company is best advised to contract with an eDiscovery consultant to serve as their dedicated Legal Hold Administrator to develop and maintain a program designed for their specific needs, and to manage third-party resources and applications. Vendors offer these services to varying degrees…I partner with reputable software vendors who provide excellent service and products; but the software vendor is not always focused on providing the administrative support that is needed in addition to specific software-related activities such as data collection, analytics and production. The following is a short summation of what a comprehensive program consists of, managed by a consulting Administrator, with software as one component.

The Strategy

Identifying the goal to be realized, and the strategy needed to reach that goal, is the most time-consuming piece in developing a sound Legal Hold program. Here are basic parts to include in that strategy:

Establishing the Team

  • Identify the program “champion” within the executive or legal group; the General Counsel is perhaps the best candidate here, but whomever steps up must be committed to the program, understand the goal to be attained, and the complexity involved;
  • Identify key players and business groups involved; these normally include legal group attorneys, IT senior people, Records group representative, Risk/Compliance representative, C-level persons (VP or CEO may be involved)

Determine the Strategy

  • Meet with the executive and legal group to lay out goals, and establish a framework for strategy. This is where the consultant’s expertise is most valuable, in understanding what the company is looking to do and being able to quickly outline the best options for a strategy framework to be considered.
  • Establish overall scope for program
  • Determine available budget range
  • Establish the game plan and timeline

Process and Implementation

Develop the program components

  • Onboard team members from various groups, explain strategy and determine each group’s “bandwidth” to meet program requirements
  • Identify and select legal hold software vendor
    • IT must be actively involved
    • Vendor and IT verify and test installation and perform test legal holds
  • Work directly with vendor to build necessary documents and reports
    • Vendor meets with IT and management to explain processes they use for specific legal hold operation
    • Legal group representative should be involved with this as well
  • Build out legal hold program activities
    • Includes structure for ongoing legal hold maintenance, legal hold implementation and closing processes, periodic active legal hold verification/certification process, etc.

Program Implementation

  • User training on software
    • Attorneys; IT support rep; backup program Administrator;
    • Provide specific guidelines for attorneys and IT
  • Publish notification and guidelines for all company employees
  • Import data for legacy legal holds if applicable
  • Begin using the software and program for new legal holds

The company may decide to keep the eDiscovery consultant on staff in a highly active role, or may appoint an internal employee as the day-to-day Legal Hold Supervisor or Administrator if budget and resources allow for that person. This decision will depend in large part on the litigation status of the company – a highly litigated or regulated company may find the burden in time and expertise needed to conduct a defensible program is so high that an experienced consultant would need to be involved a majority of the time.

Keep in mind that the Legal Hold Administrator is charged with managing the legal hold vendor during each litigation or regulatory matter; the Administrator should facilitate meetings between the vendor and all corporate teams, such as legal, IT or Records; Administrator may also interact with in-house counsel and external counsel on issues such as search terms, custodian ID, or other issues that involve proper legal hold implementation.

Lastly, one highly overlooked feature or activity that a legal hold program must incorporate is periodic review and certification of active legal holds. This activity must involve the Legal Hold Administrator working directly with each attorney who is responsible for one or more active legal holds, to verify the currency of the hold, that its content and custodian list is up-to-date, status with external counsel, and any other feature of the hold. Being able to show the court that your legal hold process itself, in addition to the accuracy of active legal holds, is current and defensible gives the company a significant standing with that judge. And, of course, it ensures that the holds themselves are accurate…even to the point that attorneys identify whether a hold can be released, something that is amazingly overlooked in so many companies.

This is a high-level summary at what designing and implementing a Legal Hold Program consists of; the effort and expertise required is significant, to the point that knowledgeable eDiscovery leaders will agree that an experienced consultant is seen as a necessity to at least develop the program and get it off the ground. For those companies with any degree of litigation or regulatory “footprint”, that consultant may prove to be essential on an ongoing basis. But first, identify and accept the need for the program and then seek out the expertise level needed.