Driving Down the Cost of Ediscovery Part 4
Creating Robust Preservation Practices
Without rigorous preservation of discoverable data, there can be no ediscovery. What’s more, investing in your approach to data preservation can have a significant impact on not only potential spoliation sanctions, but also on many hidden costs of discovery. A consistent and robust preservation process — with timely legal hold notices, clear and well-understood instructions, regular reminders, and an effective process for releasing expired legal holds — reduces the burden on the organization when a trigger event occurs, initiating a preservation obligation.
The Importance of an Ediscovery Playbook
Because consistency is one of the most important keys to defensibility, you should build out your preservation playbook to include both how you identify and evaluate trigger events for litigation and investigations and how you will scope discovery in those matters. Create standard legal hold notification templates ahead of time to ensure that you provide clear and consistent preservation instructions. Continuously train custodians on what it means to be subject to a legal hold and routinely follow up with active custodians to ensure understanding and promote compliance. Avoid bottlenecks and delays by automating routine tasks, such as sending emails and tracking responses.
Your playbook should include having custodians acknowledge their legal hold obligations. This has several important benefits. First, requiring acknowledgments improves the legal team’s confidence that the custodian has indeed received the notice while simultaneously reinforcing the importance of complying with the hold. Second, it facilitates the identification of nonresponsive custodians, enabling more rapid follow-up where appropriate. Finally, demanding a response can reduce the risk of inadvertent spoliation by a custodian or data steward, thereby enhancing the organization’s ability to defend its hold notification process as being both reasonable and conducted in good faith.
Elevate Your Ediscovery:
Your preservation playbook should include a standard process for following up on nonresponsive custodians. Consider involving the custodian’s direct supervisor through escalation or reporting, and sending consolidated reminders to cover all outstanding holds.
How Preservation Controls Costs
As I explained last week, proportionality is a critical factor in controlling costs — and having a robust legal hold process in place is a prerequisite for effectively negotiating a proportional scope of discovery. Effective legal holds are also the foundation of such cost-saving tactics as targeted collections and phased discovery, ensuring that data is safely retained until and unless it must be incorporated into the ediscovery pipeline.
When supported by your data repository, “in-place” preservation can further reduce the risk of lost data by locking down data deletion capabilities, while circumventing the costs of collecting multiple copies to preserve data or requiring a custodian to take action to avoid its loss. By integrating in-place preservation with automated legal hold management tools, you can further drive down the costs of ediscovery while minimizing the risk of data loss.
And, of course, consistent and defensible preservation processes are critical to avoiding the costs associated with allegations of spoliation or inadequate data retention efforts. A well-designed and well-integrated preservation playbook can be all that stands between you and a colorable claim of spoliation, with the accompanying costly motion practice and lost leverage during settlement negotiations.
Elevate Your Ediscovery:
Leverage your investment in Legal Hold Pro to continually improve your data preservation maturity. Look for opportunities for better reporting, additional integration with enterprise applications and IT processes, and improved workflow management.