Despite the call to action sounded by Judge Scheindlin in Zubulake and by other courts in dozens of subsequent opinions, the bar has been slow to change. When so many costly, embarrassing failures trace their origins to slipshod legal holds, one marvels that attorneys aren’t bound and determined to get legal holds right. Yet, many lawyers still imagine that a legal hold notice is just a memo or message larded with synonyms for “data” and “computer.” An effective legal hold notice is not a communiqué. It’s a process.
We see five common mistakes when it comes to legal holds.
Let’s call them “the Five Deadly Sins of Legal Holds.”
See if any sound familiar:
Sin 1 – Complacency
It’s not that organizations don’t acknowledge the need to improve their preservation processes, such as by dispatching better notices earlier and with better follow-up. Instead, the excuse most often proffered in defense of poor preservation efforts is having been too busy to do it right.
Sin 2– Confusion
Ask an attorney about improving his or her legal hold processes, and you’ll likely hear how hard it is to figure out who should be notified and how daunting it is to identify all the possible sources of relevant ESI that must be preserved. The lawyer may add that he or she simply doesn’t have the computer savvy or the support staff to craft defensible legal hold notices, get them in the right hands, follow-up appropriately and issue periodic revisions and reminders.
Sin 3 – Fear
Legal teams are often paralyzed by fear of the unknown when implementing a legal hold. Fearful of omitting a key custodian or source of discoverable information, lawyers err on the side of too many and too much in framing legal hold efforts. Certainly, it’s harder to identify the right people than it is to broadcast a hold to an entire department or business unit, but the effort is always time well spent…and money saved. An effective legal hold isn’t just an artful notice cast into the void; it’s a notice proven effective by sound recordkeeping and diligent follow-up.
Sin 4 – Overconfidence
Some lawyers fail to act based on a misplaced belief that a legal hold is unnecessary. Either they believe nothing more that needs to be preserved because policy dictates they preserve everything, or there is nothing left to preserve because policy dictates it’s already gone.
Where ESI is concerned, the gap between policy and practice rivals the Grand Canyon in every enterprise and for every custodian. Even organizations that believe they preserve everything usually don’t.Never confuse what people are supposed to do with what they really do — an effective hold deals with what’s really out there.
Sin 5 – Over Complication
Technology can be seductive. And some get so caught up in the systems, data and metadata that they lose sight of the content. Ironically, obsessing over the perfect preservation notice or mechanism can lead to spoliation by delaying preservation. To paraphrase Woody Allen, “80 percent of success in ESI preservation is just getting it done.”