Migrated from eDJGroupInc.com. Author: Mikki Tomlinson. Published: 2013-06-18 11:53:55  How many times have you participated in a conversation about a legal hold directive that starts with “You want me to hold what?”  My guess is likely not enough.   This was a hot topic at the eDJ Boot Camp on Legal Hold held in Atlanta earlier this month.  It was also a point of discussion at the Today’s Executive Counsel Institute’s ‘The Exchange’ event last week in Chicago.It appears that “you want me to hold what?” is a common question.  Yet, it is rarely asked out loud. Instead, the preservation order is followed as best as it can be interpreted.  Following a preservation order is good, right? Right!  BUT…too often there are gaps in the real scope, the scope laid out in the preservation order, and the message given to legal hold recipients.A breakdown in the legal hold process can cause fallout in a variety of ways.  There are core three questions to be examined here:  (1) is this a real problem, (2) if yes, why is it a problem, and (3) can it be fixed?Is this a Real Problem?  Yes.  And it’s common.  It isn’t just a problem for the parties involved in the small percentage of published sanctions cases over preservation failures.  It is actually baked into standard operating procedures at many organizations and law firms, and it stems from failures to communicate properly.Why is it a problem?  Consequences can range from confusion and inaccurate preservation, to inefficiency and increased cost, to sanctions.Can it be Fixed?  Fixed?  That may be shooting for perfection, but there is definitely room for improvement.Here are some real-world examples for discussion.Example 1:Scenario: I spoke with an in-house attorney who regularly receives legal hold notices from his retained counsel for distribution to custodians.  They are, on average, nine pages (yes, 9) in length and full of legal jargon.   He is not confident the notices are fit for custodian consumption and, therefore, interprets them into common, clear language prior to issuing.  (Note:  This issue is not limited to this particular counsel.  I have spoken with many, many other in-house counsels that issue or struggle with issuing lengthy legal hold notices.)Problem(s): One obvious problem here is lack of clarity in the original legal hold notice language. If a recipient cannot understand it, how can you expect compliance? Directives that are too difficult to comprehend can result in disregard altogether. Another concern is whether retained counsel is aware of and in agreement with the adjustments made by in-house counsel.Do the modifications alter the original intent in any way? Does this scenario warrant further discussion?Potential Remedy: Kudos to the in-house counsel for recognizing the effectiveness, or lack thereof, of a legalese-laden, onerously worded legal hold notice.  However, be cautious of reworking the hold language without agreement amongst all counsel that are on the hook if something goes awry.   Find the happy medium between covering all the bases and providing clear instruction.Example 2: Scenario: One of the records managers in the most recent eDJ Legal Hold Boot Camp threw out this question early in the program:  “Why do the lawyers have to send such broad, wide-sweeping preservation notices?”  The lawyer participants did a great job of answering with valid explanation.  This led to the next statement: “Okay, I can live with that.  But it would be helpful if the directives were more clear.”  (Humph.  They aren’t clear?)  Then another records manager piped up and said that the hold directives don’t line up with the way they actually keep records, which is confusing.  (Okay – I get it now!) So I asked her what she did when she received these unclear hold notices, and she said: “I interpret them as best I can.”  And then came the talk on the cost/burden of preservation efforts. (Note:  all of the other records managers in the room were nodding throughout the exchange.)Problem(s): First, see Example 1, above.  Second, interpretation may lead to over-preserving (increased cost) or under-preserving (increased risk).  What if the case is valued at $100,000 and the cost for preservation alone is the same?  In this scenario, it would be a lose-lose.  Preservation would simply be carried out as instructed/interpreted without question and at a great cost, and counsel would be none the wiser.Potential Remedy: All recipients of legal hold notices –business custodians and data stewards/records managers – need to filter questions and impact of preservation back to counsel.   Further, counsel (both in-house and retained) should make a concerted effort to understand the organization’s information environment.

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“Communication is key” is the cliché that immediately comes to my mind.   It is not just communication on the part of one person in the mix… it is communication amongst everyone involved in the process.Talk, people, TALK!! Mikki Tomlinson can be reached at mikki@edjgroupinc.com for offline comments or questions. Her active research topics include Legal Hold Notification, Legal Hold Process Management: Progression of legal hold notification to collection workflow (project management) and collection tools, and eDiscovery Education. Find Mikki at the following future events (please feel free to email to see if any passes or discounts are available):

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