Discussion: Legal Hold Notification Software

by JulieLaboe

A couple of weeks ago I wrote a blog about Legal Hold Notification Software. I then posted it on some of the LinkedIn® groups of which I'm a member and received some great feedback. Provided below is the feedback I received from the e-Legal LinkedIn group. Please feel free to add additional comments.

November 2, 2009

Richard Rodney

Director, Litigation Support
SiteLogic, Inc.

“My thought is that while the technology is not new, few people spend the time necessary to understand how legal hold technology or other technology with these features can help the process. I believe part of the problem is the belief their is an eDiscovery silver bullet. I believe you need to have more than one type of bullet. The products mentioned all do some form of Legal Hold ESI sequestering and notification amongst other things but approaches are different because their core clients and markets are different. You add in compliance concerns, and data migration concerns, maintenance of digital chain of custody, and convergence of these service requirements and you have a quagmire of products, that overlap and often times are attempting to be everything to everyone.

For the person or group who is attempting to properly vet these options, sometimes, my sense is they are trying to figure what hammer to use before they have figured out what project they are going to use the hammer for, putting up drywall or hanging a Romare Bearden original. There are few developers that get that and are trying to streamline the message, but when you have many things that are alike and a budget, how do you decide which one is best quickly? Then the process of vetting, acquiring and implementing gets tabled for another few weeks or months. I think it is not for lack of information being out there, rather there may be too much information to disseminate mainly on the view of who's hammer can do the most.

Well those are my $0.02”

Julie Laboe
Editor-In-Chief
Legal TechBase

“Thank you for your $0.02 Richard. I totally agree. We've got to get to a point where we can educate buyers enough so that they can make these decisions. I think that we really need to think of the vendors and their products as more of a smorgasbord than a five course meal. I just find it interesting though that in all of the discussions about the different technologies needed for "litigation readiness" that I just haven't heard much of anything about the Legal Hold notification type products.”

November 9, 2009

Andrea Woronuk Collins

Strategic Account Manager
Bridgeway Software

“Julie,

I think you raise an interesting question. As seen in a number of recent court cases in which companies have been fined millions of dollars (Prudential and Philip Morris among others) for destroying documents or erasing emails, the risks of spoliation are significant and the penalties are high. This has led many in-house corporate legal departments to begin investigating and implementing software in order to mitigate this risk and replace less reliable manual spreadsheets and email reminders processes.

The challenge is that very few Legal Hold solutions actually have built-in noticing. Many software vendors that claim legal hold are actually focused on data preservation rather than notice generation. For corporations that are purely trying to handle the generation, distribution, and tracking of their legal hold notices, this presents a challenge because these software applications are convoluted with additional functionality and thus require a hefty investment and lengthy implementation. So, to answer your question, you might say that the reason you don’t hear a lot about Litigation Hold software is because many of the eDiscovery vendors offering legal hold functionality are focused on data preservation rather than legal hold noticing. Their marketing initiatives are focused on raising the preservation issue, not solving the specific notification need.

As a software vendor to the corporate legal community, Bridgeway began researching the litigation hold and eDiscovery needs of our clients about 3 years ago. Based on our conversations with General Counsels and eDiscovery Managers for the Fortune 500 and representative client base, we built a legal hold application that focused on meeting the specific noticing need rather than an overly complicated application that expanded well beyond noticing into other areas of preservation. For more information on Bridgeway’s Legal Hold application, please visit: http://www.bridge-way.com/products/legal-hold.

I look forward to further discussing this topic.”

November 11, 2009

Chris Bright

VP of Marketing
Zapproved

“I think the notification side of legal holds is just now coming to the forefront due to a raft of recent cases. It is becoming a hot topic in the industry right now.

The challenge is that the term "legal hold" is being used in many different ways which has confused the issue. To date, most of the products using this term have focused on data retention. Those that address the issue of custodian notification have been add-ons to larger enterprise packages and not the primary focus. That is changing and more attention will be given to this part of the smorgasborg.

Effectively implementing holds is an emerging area because GCs and attorneys are realizing the weakness of their existing process. Building a better workflow process is a big component, so I think products like Legal Hold Pro will be getting more attention going forward.” 

Kyle Holley

Corporate Sales Representative
Autonomy

“I'm aware here at Autonomy they just came out with anuodated version of Aungate Legal Hold and Aungate Archiving Digital Safe.

http://finance.yahoo.com/news/Autonomy-Unveils-New-prnews-3493156139.html?x=0&.v=1”

John Martin

CTO
RedFile

“I've always thought that "faith-based" preservation is never a good idea, mainly because sometimes - you are guilty (the "you" being a corporate employee). Noticing via email with no method to enforce data preservation directly is a weak method at best. People don't delete/obfuscate information 6 months before an investigation, they do it 5 minutes after they know.

My $0.02,

John”

November 12, 2009

Chris Bright

VP of Marketing
Zapproved

“John,

I think both aspects (notification and preservation) are important. A vast majority of legal holds are routine matters that are needed to instruct custodians of the need to preserve data. They are designed to prevent deletion or alteration of records/files and do not involve any bad behavior. These are important to show good faith by the company that proper procedures were in place and executed after a trigger event.

Spoliation is still likely to occur, but this provides an important "safe harbor" for the company. (Judge Peck was explicit about this at LTWC in June.) Even if there is a "bad actor," the company still is protected. Time is of the essence, so acting quickly is critical.

In instances when there is the potential for incriminating evidence or a suspected "bad actor," then protecting the evidence by "locking it down" is absolutely imperative. However, most of the time that is overkill.

The two components are complementary. To Julie's comment above, they are part of the e-discovery smorgasborg.

Chris”

November 14, 2009

Dan Fischler

President and CEO
Digital Strata, Inc.

“I agree with the overarching point that legal hold notification software is not emphasized in the overall discovery process. The idea that notification and actual data preservation are separate themes is crucial to the value proposition for companies that offer either a full legal hold solution (that possibly includes notification) or for companies that offer a legal hold notification solution.

Our approach at Digital Strata is to use our tool (Discovery Agent) to generate tracked, audit-worthy legal hold notices with automatic reminders, managerial escalation, and custodian interaction in the form of acknowledgement or surveys. We can then both inform the custodian of their duties to preserve data, hence creating a safe harbor for the company, and gather information that can better inform our process for preserving data down the road. It is the response to the notice that helps us develop a collection and preservation strategy specific to a given case.

We've found that the tools that try to do everything in one package tend to not effectively cover the needs of the more niche tools, and they also tend to be far more expensive. We believe that a niche tool for composing and tracking hold notices and reminders combined with a solid process and targeted collection strategy for preservation presents our clients with a more cost-effective yet defensible solution.”