As we pointed out recently, a legal hold can be a frighteningly complex task, potentially involving thousands of documents and hundreds of people, dispersed across business units and borders, servers and systems. Locating and preserving the right records and data, especially when you’re managing multiple holds at the same time? That can generate risk of noncompliance and negative litigation outcomes if a legal department is still relying on manual, conventional methods to manage it all.
Or it may choose to issue adverse jury instructions as a sanction: In O’Berry v. Turner, a 2016 Georgia personal injury case, a federal judge found that the defendant’s data preservation efforts had been “minimal,” and instructed the jury that they could presume the missing evidence would have been damaging to the defendant’s case.
Noteworthy examples of how failed legal hold processes impacted corporations involved in litigation?
Deleting data earned a $3MM penalty:
In 2012, when Plantronics got notice of an antitrust lawsuit against it, it informed employees to preserve relevant information, held training sessions, and issued regular reminders about proper compliance. Yet one executive still deleted over 40% of his emails and even urged others to follow suit, resulting in the loss of thousands of emails. Despite Plantronics’ efforts to preserve and then recover this data, a federal judge imposed $3 million in sanctions on the company.
How “sloppiness” slapped HarperCollins Christian:
During the course of a lawsuit against the religious publishing division of HarperCollins, a Special Master and a Magistrate Judge both found the defendant had exhibited “willfull blindness” during the hold process, was “casual and careless” and “homebrew, sluggish and sloppy,” and showed “paralysis or even purposeful sluggishness” with its “commitment to defensible collection and search [being] at best perfunctory.” Over 750,000 emails and attachments from the relevant time period hadn’t been preserved, among other materials. Among the multiple sanctions? Harper Collins Christian was precluded from offering certain evidence its defense and would be responsible for 75% of the Special Master’s fees and costs and 50% of plaintiff’s attorneys’ fees. Total penalties in this case, which originated in 2012, will probably reach into the seven figures.
In many cases, they will have never had prior contact with those employees or their managers, so they’re faced with untangling organizational knots to pinpoint the appropriate custodians.
Another level of difficulty presents itself when relevant data is scattered among potentially even thousands of custodians. The task of simply identifying who’s an actual eligible custodian can become a huge time-sink for a legal department, rife with rabbit holes and dead ends.
The solution? A SaaS legal hold solution that integrates cleanly with your HR and enterprise platform databases via APIs/direct connectors. These allow the software to sync directly with these databases. The benefits to your in-house legal team?
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Access to data and devices so they can do early case assessments, collect relevant take.
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The ability to suspend routine deletion tasks that could compromise key data.
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Significant acceleration in the identification phase of your hold process.
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Increased chances of targeting the right custodians straightaway and eliciting timely responses and attestation.
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It won’t require IT assistance (or only minimal involvement).
Automated reminders and escalations are a key feature of SaaS legal hold management solutions:
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They simplify and expedite the instruction and attestation process and add greater accuracy by replacing spreadsheets or other manual means of custodial tracking with automated reminders.
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Custodians receive both initial notifications and the followups you set to ensure you’re getting compliance within your timeline.
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If a recipient doesn’t comply, the issue can be automatically escalated to their superiors. But by automating the initial custodian notification process, though, this becomes more avoidable.
