eDiscovery Wounds When Racing The Clock

As the business of litigation becomes more data driven, it exposes even minor mistakes during the “eDiscovery” process. The most common self-inflicted wounds often occur before substantive discovery even starts; the legal hold. A legal hold is the process undertaken to preserve all forms of relevant information for anticipated litigation. Legal holds are not “one size fits all” and depend on the size of the organization enacting the hold, and scope of pending litigation. Legal hold troubles usually begin at the identification stage of the custodians involved and their related data sources.

Law firms and corporations are savvier to the eDiscovery process, but often create issues with timing and/or scope of legal holds. These are results of outdated information governance policies or lack of communication between departments such as IT and legal. For example, legal and IT may not be on the same page as to email archiving schedules, VPN permissions to save data locally on non-company workstations, and server shares.

As eDiscovery continues to grow, courts are raising their expectations for legal hold thresholds. The leash is getting shorter for missing custodians or incomplete data maps of a custodians relevant data. Often times a third party litigation service provider will circulate custodian questionnaires with which to build a data map. These are highly customizable questionnaires and provide documentation of the identification process.

Whether you are a serial litigant, or one time party to litigation, you can save yourself time and resources with a properly designed and executed legal hold.