Legal Holds and Trigger Events

Legal Holds Continue to Present a Technology Hurdle for Half of the Organizations Surveyed

Results recently released by a combined Forrester/ARMA survey demonstrate that "increasing regulatory requirements and onerous eDiscovery burdens are forcing enterprises to design strategies to mitigate legal risk. Effective records and retention management programs play a big role in these strategies."  Records Management: User Expectations, Market Trends, And Obstacles (Forrester/ARMA 2009) ("Survey").  The Survey reports on the increasing role of records managment to help mitigate legal risks associated with the continued explosion of the volume and types of electroncially stored information created and stored by organizations each day.  The Survey is 11 pages and worth a view to check in on the current state of records management.  ARMA members can download a copy of the report here.

Because we focus on legal holds, the Survey reported that legal holds continue to present a technology hurdle for over half of the organizations surveyed:

• Limited support for integrated legal hold capability poses significant legal risk. Integrating legal hold capabilities with records management plays an important role in mitigating legal risk. Nearly 48% of records management stakeholders report that their records management solution supports legal hold natively or via a packaged third-party integration. The counterpoint to this figure represents significant potential legal exposure. More than half of records management decision-makers report that their application doesn’t support legal hold, that they don’t know if it does, or that it does but that these capabilities aren’t currently being used.

Survey, p. 6.  Forrester conducted the survey online with responses from 434 technology and strategy decision-makers with responsibility for records management during June and July 2009. Approximately 95% of respondents were located in North America. Approximately 32% of the survey participants were employed by enterprises with more than 5,000 employees.

To read more about the Survey, see the press release here.

Litigation Hold Round Table Held at ABA TechShow With Patrick Oot and Craig Ball

Here is a great post about the ABA Techshow this past April, 2009.  Verizon lawyer Patrick Ott and e-discovery lawyer and thought leader Craig Ball took litigation hold questions from the audience and invited members of the audience to present specific litigation hold issues to the group for discussion.  The session appears to have been invaluable based on the blog post from ediscoveryinfo.

Some quick highlights:

Patrick Oot explained that Verizon built an internal legal hold solution, mostly because it has programmers on staff and it had simlar notification system in place.

Craig Ball quized the audience about litigation hold headaches.  The chief complaint; lack of complaince and overly broad scope of the materials to be preserved.  Craig then had an insightful comment to close the session:

I consider preservation letters a gift because it gives me insight into the other side’s real intention. If it says “save all the metadata,” then I know they are an ignoramous. But if they are specific in their request, then I know that I have to have my ducks in a row because they know exactly what they’re doing.

To read the original blog post, click here.

E-Discovery: Barriers, priorities and requirements survey (February 2009)

A benchmarking survey was recently released by HP.  The survey results highlight a problem that is as much legal hold related as it is e-discovery related.  In short, who owns the e-discovery process, legal, IT, records management or a combination?  The same is true for legal holds, as the failure to implement a legal hold is often the first misstep on the way to e-discovery related sanctions. 

The HP survey revealed that organizations believe information is their highest business priority this year, yet fewer than 50% of decision makers are confident about their organizations' information quality and accessibility. About 40% of respondents said their firms lack in-house expertise and clear information strategies, particularly for electronic discovery. Among other findings from the HP-commissioned research surveys were:

1) Firms' biggest concerns regarding electronic discovery include the risk of being unable to produce documents quickly and the possibility of sanctions or bad press for failing to do so (42%). Other concerns cited included the lack of appropriate infrastructure to implement e-discovery strategies (24%) and worries about e-discovery costs (20%). 

2) There appears to be a disconnect in correlating information strategy and e-discovery strategy for some firms. When asked "Who decides e-discovery strategy?" 60% replied that the effort was collaborative and would involve the firm's general counsel. But when asked “Who decides e-discovery technology?" 71% said the decision would rest solely with the chief information officer. 

As shown through various discussions and cases on www.legalholds.typepad.com having a comprehensive legal hold business processin place is the best way to 1) preserve documents and ESI following a trigger event for litigation or anticipated litigation, 2) define the scope of preserved information appropriately to the trigger event to avoid costly over-preservation, 3) proper preservation practices should allow an organization to avoid sanctions and 4) avoiding over-preservation will save organizations money by reducing the volume of ESI to review and produce.

To read the original ARMA report on the survey click here: http://tinyurl.com/r6gdrb

For a copy of the HP Survey results click here: http://tinyurl.com/pjy977

Legal Hold Benchmarking Report (October 2008)

A survey of Global 1000 companies with revenue over $5 billion was conducted between October 2007 and March 2008. Benchmarking data was collected from corporations with revenue ranging from $5 billion to well over $150 billion in virtually all industry sectors, including: Biotechnology, Chemicals, Consumer Products, Energy, Financial Services, High Tech, Insurance, Manufacturing, Pharmaceutical and Transportation sectors, with Energy and Financial Services comprising 50% of the total.  The findings of the survey are published in a report titled: "Benchmark Survey on Prevailing Practices for Legal Holds in Global 1000 Companies."

The GCOC website reports that the survey "will highlight the changes in processes and technology within [the surveyed] companies, the impact of those changes on reducing risk and cost, and the methodologies used to issue legal holds, manage preservation, and conduct e-discovery." The Survey was produced by CGOC (www.cgoc.com), a community of corporate practitioners in retention, preservation and privacy, Huron Consulting (www.huronconsultinggroup.com) and was sponsored by PSS Systems (www.pss-systems.com), a legal hold software company. You can download a copy of the Survey here: http://tiny.cc/cuAPK.

Legal Hold Benchmarking Report (August 2008)

A comprehensive survey of the legal hold practices of 235 companies (90% from the United States) was conducted in the Fall of 2007, by www.ITPolicyCompliance.com.  The report contains detailed factual information about the size of the companies, annual revenue and legal hold practices.  A number of conclusions are drawn from the data collected and published in a comprehensive report titled: "Improving Results for Legal Custody of Information" (August 2008).

A press release for the report stated "[t]he research shows that firms with the lowest spending on legal settlements, legal fees and expenses in IT related to legal requests for information are all implementing the same practices, especially when compared with the practices implemented by all other firms."  You can see the press release and download the report here: http://tiny.cc/Vgzmm.