The Lines Between Information Governance and Legal Hold Are Becoming Blurred – and That’s a Good Thing

By: Doug Kaminski
Chief Revenue Officer, Cobra Legal Solutions

If you’re familiar with today’s Electronic Discovery Reference model (EDRM), you know that 1) the model shows distinct lines between each of the phases and 2) the far left-side of the model actually includes a model within the EDRM model.  The Information Governance Reference Model (IGRM) recently replaced a circle that simply said “Information Governance”.  So, the EDRM model now actually gives you two models in one!

Regardless of whether it’s represented by a circle or the entire IGRM model, the Information Governance phase has been the only phase represented by a circle for years.  Why?  Because it is the only phase considered to be enterprise wide and perpetual.  Today, however, the lines for where InfoGov ends and Preservation and Legal Hold begins are becoming blurred.  And that’s a good thing.  Here’s why.

The Two Components of Legal Hold

Though we talk about “legal hold” as one process, there are actually two components of legal hold that many organizations grapple with to manage the duty to preserve potentially responsive ESI today.  With the challenges that many organizations face today in terms of volume and variety of sources of ESI and more remote workforces, both components are essential today to effectively manage your preservation and legal hold workflows.

Legal Hold Notification Management

When the duty to preserve ESI commences (which can often occur even before the case begins), it’s important for the party with ESI responsive to the case to notify potential custodians that they need to preserve that potentially responsive ESI in the form of a legal hold notice.  Failure to do so could lead to spoliation of ESI and possible sanctions.  You not only want to issue hold notices, but you also want to confirm that each custodian has received and acknowledged their duty to preserve the ESI subject to legal hold.  This not only means refraining from actively deleting ESI, but it also means suspending automatic deletion programs for email, texts, chat messages or any other form of ESI for which an auto-delete program may have been implemented.

Legal hold notification becomes a lot more challenging when you have a large number of potential custodians and/or an extended time frame for the case.  The larger the custodian pool, the more difficult it is to track confirmation from each custodian that they have read and understand the hold notice.  The longer the case goes, the more likely you will have to periodically remind those custodians of their preservation obligation by re-issuing hold notices (and confirming receipt and understanding once again) during the case.

Managing this process via spreadsheets can be time consuming, complicated and unwieldy, so it makes sense to automate the notification process working with a provider to implement a legal hold solution that enforces a defensible and repeatable process for legal hold notification. You need someone experienced who can help you leverage the legal hold solution to automate the delivery and tracking of hold notices, provide template examples to ensure you’re covering all of the bases in your instructions and also provide audit trails, powerful dashboards and robust reporting to enable you to know where you stand on legal hold activities to save considerable time and cost in managing legal hold notifications.

Preservation in Place Legal Hold Management

The more recent phenomenon in legal hold management is to lock down and preserve ESI in place in the cloud enterprise systems that organizations use every day to govern their information.  This is where working with a provider that can help you get the most out of your legal hold solution also enables your organization to begin to benefit from blurring the lines between InfoGov and Legal Hold.  The ability for the legal hold solution to integrate with the systems your organization uses every day to track and manage communications and work product – such as Office365, human resources (HR) and even matter management platforms – and automatically preserve data in place, streamlines previously manual processes that were necessary to preserve that data.  This saves considerable time and cost while also reducing the risk that come with manual processes.

In doing so, your legal hold solution facilitates key InfoGov activities, such as defensible deletion.  Automatically keeping track of what ESI can’t be deleted when preserved in place and what ESI becomes available to be deleted (once the duty to preserve no longer exists) simplifies the defensible deletion process, leading to better overall organizational data hygiene.  InfoGov and Preservation/Legal Hold have become interwoven instead of the separate and distinct processes they were before.

Effective Legal Hold Management Today

As noted above, an effective legal hold solution today 1) supports the management of legal hold notifications, 2) integrates with cloud enterprise systems to preserve potentially responsive ESI in place, and 3) provides a defensible audit trail.  And that solution should be part of an overall eDiscovery approach that supports collection, processing, analysis, review and production as well.  Perhaps it’s time to think beyond the event driven EDRM model and look at this holistically – the lines between phases are getting very blurry!

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