Perhaps the most important thing to keep in mind is that preparation and strategy are essential to a smooth legal hold process, and applying a proactive approach to all matters related to anticipated or ongoing litigation is always advisable.
Here are four steps you can take to enhance your posture toward legal holds:
1. Get Your Ducks in a Row
It might sound deceptively obvious, but taking preparation and organization seriously from the outset of the legal hold process can make a world of difference. Before any notifications are drafted or sent out, all relevant custodians need to be accurately identified. In other words, it’s critical to be 100% sure about who should be on the receiving end of a hold notification. Additionally, it’s vital that you establish and understand the scope of duty to preserve. This typically encompasses the subject matter of the information to be preserved, time frame, types of data and formats, sources of data, the duration of preserved data, whether or not there is an ongoing duty to preserve data, and more.
There should also be an enforced and adhered-to window of time between when notifications are sent and when custodians should be expected to respond. By sticking to an established time frame, you’ll know precisely when to re-notify custodians who don’t respond in time or when instances of noncompliance should rise to the level of manager escalation.
2. Make Legal Hold Notifications Clear and Concise
This is a relatively easy strategy to implement, but it can be an absolute game changer for legal teams when sending notices to multiple custodians across an organization. The advice stems from the simple fact that most custodians — particularly corporate employees who aren’t legal professionals — are bound to be relatively unfamiliar with the language of hold notifications. In fact, the notice you send them could very well be the first one they have ever seen. The fix here is to draft your legal hold notifications in as simple terms as possible, making the content of the notice easily understood by anyone.
Short and sweet is a great general rule — two paragraphs or less is ideal — in addition to using formatting tools to your advantage. Bold, italicize, or underline any particularly important information whenever possible. Include an acknowledgment deadline so they clearly know when they should respond. If you can manage to get the majority of your custodians to acknowledge and respond to the notifications in a timely manner, it can save your team an incredible amount of time as the process moves forward.
3. Centralize Information Across Your Organization
We touched on this one previously, but its absolute importance to the legal hold process begs reiteration. More than just keeping all data organized and easily accessible, working from a centralized platform can allow you to experiment with standardized templates for hold notifications. This will help establish which language is effective and which isn’t, making the process more efficient and ultimately increasing custodian acknowledgment over time. Additionally, working from a shared platform can improve your tracking capabilities, as it will give all authorized parties the same level of insight into who has acknowledged, who hasn’t, and how many custodians will need to be re-notified.
4. Use Automation Technology to Streamline Communication with Custodians
The calculated use of automated legal software has the potential to address all of the challenges mentioned here. For one thing, it almost immediately solves the problem of poor time management associated with manual approaches, but more importantly, it removes a significant majority of the unnecessary risks. There is simply too much that can potentially go wrong when every turn of the legal holds process is executed manually, but when each individual process is powered by automation, from notifications to escalations to re-notifications, everything flows reliably and according to your established strategy and cadence. The automation tools on platforms such as Everlaw are incredibly easy to implement, and legal teams can even schedule automated reminders to reach custodians who fail to acknowledge within an established time frame, putting the organization in a better position to increase compliance.
Better Processes = More Efficient Legal Holds
Whether it relates to anticipated or active litigation, having strong management processes around legal holds is absolutely critical to a legal team’s ability to protect their organization. And because legal holds can be increasingly complicated and demanding, particularly in light of the complexity and volume of data most organizations manage today, it’s equally important that these processes be made as efficient and straightforward as possible.