Great management of legal holds isn’t just the difference between a frustrating spreadsheet and a sleek platform (although the technology probably helps). It’s also protection against overspending and frustrated employees — not to mention serious spoliation sanctions.
Three legal hold experts — Sheena Ferrari of Snap, Inc.; Jesse Murray of Lime; and John Sanchez of DISCO — recently discussed their strategies for streamlining the legal hold process in a webinar with Today’s General Counsel. Here are some of the main takeaways:
Consolidate digital data
Long gone are the days where the entirety of an employee’s data could be found in their inbox – or their locker, as Ferrari quipped. Beyond email, today’s employees are used to being able to choose the programs they use rather than being given one company-mandated option — which results in a plethora of disparate data that becomes a headache when it comes to legal holds and preservation. Ferrari noted that she has experienced a company using 30 applications – just to manage to-do lists.
In many environments, this means that the legal team will need to become back-end experts in each system to get the data out. And the more systems, the more complicated – and risky – this process becomes. Murray recommended checking for duplicates — for example, rather than building out a separate API connector for one team’s to-do list, can you access that data from their Google Calendar that the legal team already has access to?
Having a platform that can perform this backend work for you can also be a huge advantage. Ferrari pointed out that Microsoft 365 is typically a complex system to manage, but with DISCO Hold, she was able to preserve that data in place through automatic integration with Outlook, saving herself and her team the trouble of having to manually wrangle yet another backend system.
Manage risk defensibly with smart data retention and preservation
With so many data sources, it’s difficult to balance resourcing with risk to preservation compliance. Sanchez pointed out that preservation compliance under Rule 37(e) of the Federal Rules is for parties to take “reasonable” steps. While more applications does mean more risk, for many GCs, the bigger concern is the looming threat of compliance leakage and therefore having control over where data lives and who has access to it.
Rather than hitting the “easy button” and archiving everything, Sanchez sees more companies taking a tactical approach to what data they keep. However, Murray pointed out that even if you’re not actively deleting anything, that doesn’t mean your data is preserved, which makes prioritizing attention to these data sources by potential relevance, volume, and ease of accessibility key. For example, some systems are set to delete data automatically, and so it’s critical to determine early when and how they are doing this, rather than finding out at an inopportune time.
Create and run playbooks – and keep them up to date
All of the experts agreed that documentation of processes into a playbook is critical, especially for the purpose of business continuity for new hires or departing employees. Ferrari stressed that this is true no matter the size of your firm — playbooks helped her as a solo practitioner and at her current enterprise company. DISCO Hold helped her here by providing complete audit trails and tracking of acknowledgments, thus eliminating manual tasks from her to-do list and helping to ensure that her team’s compliance efforts are thorough and defensible.
Murray also stressed the importance of notating outliers that need additional support in the playbook — stakeholders, process to preserve data, etc. Documenting these unusual processes makes them much easier to defend if necessary, not to mention helps you get new hires and outside counsel up to speed faster.
Sanchez recommended reviewing playbooks at least every six months to make sure they are up-to-date.
Keep processes efficient with centralization
Bringing technology into the legal hold process can greatly increase efficiency and productivity.
Murray gave the example of using templates wherever possible, such as organizing key custodians, which precludes having to start from scratch, ensures you don’t miss a custodian, and helps with reporting. Being able to identify these common custodians also enables legal teams to get a deeper picture of what information they have, or other cross-matter insights. He also pointed out that a single source of truth means not having to chase down different ways custodians are referenced — nicknames, name changes, title changes, etc.
Ferrari added that taking multiple processes and turning them into one interface that she can interact with has been “totally life-changing” for her in terms of productivity. Murray pointed out that she’s probably not alone here — having to perform a 15-step process for every legal hold is not going to make employees happy or motivated.
Ferrari shared a case study of how finding an end-to-end provider and building integrated systems has made her processes much more efficient — as well as a better experience for IT and the end user. IT no longer has to wait for data, and the end user doesn’t have to sift through emails to find what’s needed. The easy-to-use interface of DISCO Hold was also critical for her — no one has the time or desire to spend hours learning how to use new software.
She closed by saying, “It’s very important to have these, and I don’t think the cost is prohibitive to have these types of programs in your company. I encourage you all to go explore. [...] When you think of the ROI, the business continuity, the risk mitigation, the centralization of your processes…I think it always pays for itself. The leaner you are, or the bigger you are, it’s really important.”