A multi-part series on achieving effective legal holds, including relevant case law, content to include, processes to employ, best practices to follow, available tools to leverage, and more
In the first Part of this series, we reviewed an assortment of recent cases illustrating the potential dangers associated with ineffective or nonexistent legal holds. In the second Part, we reviewed the duty of preservation and the triggers to that duty and hold issuance. In the third Part, we reviewed the standard elements of an effective legal hold. In the fourth Part and the fifth Part, we reviewed the importance of defined hold processes and policies for the five key legal hold activities. In this Part, we will discuss the tools you can use for these activities.
The first and simplest tool available for legal holds is, of course, paper. Before the advent of the options discussed below, paper holds, signed paper confirmations, and paper reminders were the norm, and for smaller organizations (e.g., those in a single office location), paper may still be a good choice. It is simple and inexpensive to create, distribute, and document holds in this fashion. For larger or more geographically-distributed organizations, paper can quickly become logistically cumbersome and time consuming, however.
As consistent, universal email usage became typical, the same processes were executed using messages in the body of emails: holds distributed as emails, confirmation responses done as reply emails, etc. This is also a suitable approach for small or medium organizations, and email lets you easily extend the simple approach of paper beyond a single office location. For larger organizations, however, manually tracking the number of emails back and forth that will be required can become just as logistically cumbersome as distributing and collecting paper.
For medium or large organizations, it is now common to create and use electronic forms rather than just paper or emails. These are forms with defined fields that allow recipients to electronically “sign” the forms and then fill out any other requested information (e.g., preliminary custodian survey information). Standard field entries make the aggregation and tracking of the responses much easier than it is with loose paper or emails. These types of forms are most often created as Adobe PDF files or as Microsoft Excel files. Each has advantages and disadvantages, but the current trend seems to be toward PDF forms, which are arguably easier to build and which look more like traditional paper forms to recipients.
Today, there are also a variety of purpose-built tools specifically for creating, distributing, and managing legal holds. There are more than a dozen offerings of this type in the marketplace, and more are sure to appear as the industry continues to grow. Some of these are standalone applications, some are SaaS solutions, and some are modules integrated into larger litigation management or eDiscovery software suites. All of them provide a measure of automation and standardization for the creation, distribution, tracking, and refreshing activities, allowing an organization to centrally manage the numerous simultaneous holds common to large organizations (the median number of active matters for large corporations is 20).
What follows are descriptions of five leading solutions to orient you to the range of options available. These descriptions are not endorsements or recommendations, as the right tool for a particular organization is a very fact-specific question. The information below is drawn from an independent Forrester research report on legal hold tools:
Upcoming in this Series
Next, in the final Part of this series, Privilege, Evolution, and Key Takeaways, we will review the question of privilege, a note on evolving technology, and key takeaways from this series.