Legal hold has been a hot topic in litigation since the Zubulake case rocked the discovery world in 2003. Since that time there have been a number of products developed to manage the legal hold notice process. I recently had the opportunity to review several of these applications via a Request for Information (“RFI”) project with a corporate client. That, coupled with the eDJ Group survey on information governance, led me to some observations to share.
For purposes of background, the RFI – which consisted of roughly 100 questions about the software – was submitted to more than a dozen companies, including those offering products installed behind the corporate firewall and those offering hosted solutions. Roughly one-half of them responded. Some declined due to the fact that their legal hold management (“LHM”) product does not stand alone (e.g., part of a larger matter/e-billing management platform), while others declined with no reason provided after reviewing the RFI questions . The two companies selected to proceed to the next phase scored the highest based on RFI response for (1) behind the firewall, and (2) hosted solutions. One company offered both. (Note, the RFI was scored based on client priorities and requirements.) Overall, I was impressed with all of the products that responded.
Both of the behind the firewall providers reviewed in our RFI project were early to market (2006) and are mature in eDiscovery years, while both of the hosted solutions were released in more recent years. Those that did not make the cut to the next phase: (1) do not have a core business model around LHM, (2) do not have LHM as a stand-alone product, or (3) are immature in LHM product development.
It is clear that litigants understand the importance of LHM. However, according to the preliminary results of the eDJ Group survey, a significant number of respondents indicated that they do not use a tool to manage legal hold workflow. Sixty-nine percent (69%) of the respondents have a documented legal hold process, yet an astounding 44% do not use a LHM tool. The response as to tools used is as follows:
- 23%: Use a commercial off the shelf product
- 24%: Developed a system internally
- 44%: Do not use a tool to manage the process (alarming!)
- 9%: Do not know.
I was quite surprised that so many do not use a tool to manage legal hold. If you are among that 44%, I am happy to report that there are several options available. Choosing a LHM solution comes largely down to these three analyses:
- Litigation Profile. Are you a full-time or a part-time litigant? How many cases are you managing and how many employees are affected? What percentage of your litigation consists of serial litigation?
- Corporate Culture. What level of guidance and monitoring do your custodians and stewards of data need in order to achieve compliance? What level of support does IT provide for legal initiatives?
- IT Environment. What limitations/advantages are there for a behind the firewall versus a hosted solution? Are you subject to regulatory or cross-border controls that impact storing your data in the cloud?
My take on LHM products on the market today:
Behind the Firewall. The behind the firewall products that focus on LHM as a core business go the extra mile with modules that build on the LHM base. These products are architected to expand from LHM, which is essentially a managed workflow, to eDiscovery project management/documentation capabilities, system and custodian mapping, and collection. These systems are strong and mature.
Hosted Solutions. I anticipated these products would be LHM “light”. I was wrong and am pleasantly surprised by the robust capabilities of the hosted solutions. The offerings that are hosted by companies with LHM as a core product are worth a test drive.
Approach the products that are after market add-ons (e.g., not the core product line) or are new to market with care. While they are maturing, these products should be fully investigated to determine whether they meet your LHM needs.
Are you surprised that 44% responded in eDJ’s survey that they do not use a tool to track legal hold? The survey is still open. I would encourage you to participate by clicking here.
eDiscoveryJournal Contributor – Mikki Tomlinson