20 years after Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309, [SDNY 2003] I still encounter corporate counsel issuing ad hoc legal hold notices without automated preservation in place across their data assets. Judge Scheindlin’s adverse inference ruling was the eDiscovery shot heard by every corporate counsel, though many put their heads right back in the sand. Legal hold technology acquisitions, product/feature launches and news stories abound. So, what does a mature, defensible legal hold system look like today?
The consultant in me wants to say, “It depends.” Not an acceptable blog answer.
Let’s start with a typical large enterprise unregulated corporation with a healthy litigation profile. Documentation of process is the foundation upon which we build defensibility. In today’s information overload that translates to automated tracking of decisions, notices, acknowledgements and more. M365 Purview eDiscovery(Premium) and many other platforms provide basic hold notifications. Our company wants more automation and tracking out of the box with cloud data sources beyond M365. 85% of Fortune 500 companies use Microsoft 365. Our typical legal hold system should leverage M365 and other cloud source’s capabilities for in-place legal holds.
Legal hold notification and preservation of constantly evolving electronically stored information (ESI) sources challenge corporate legal teams. Old school spreadsheets or email folders do not scale. Modern legal hold platform’s Microsoft 365 and extended cloud source integrations are good news for customers struggling with parallel or complex hold workflows. Enterprise ecosystems deserve a centralized, automated preservation platform.
A defensible, documented preservation process and validated technology reduce discovery risk, cost and effort. When conducting client RFP’s I look for providers with healthy long term source integration partnerships and broad source coverage. Can we place holds or track on physical records? Can I see all the holds on a custodian, location or source? How do they handle preservation collections? Because some data sources are too new or complicated to preserve in place. Have you assessed your legal hold process recently? Can you meet your fundamental obligation to “First do no harm” for potentially relevant ESI?
Take some time to demo the new generation of legal hold platforms and assess how your users are generating ESI across M365 and the cloud. Shoot me your questions, potential gaps and impressions.
Greg Buckles wants your feedback, questions or project inquiries at Greg@eDJGroupInc.com. Book a free 15 minute ‘Good Karma’ call if he has availability. He solves problems and creates eDiscovery solutions for enterprise and law firm clients.
Greg’s blog perspectives are personal opinions and should not be interpreted as a professional judgment or advice. Greg is no longer an investigative journalist and all perspectives are based on best public information. Blog content is neither approved nor reviewed by any providers prior to being published. Do you want to share your own perspective? Greg is looking for practical, professional informative perspectives free of marketing fluff, hidden agendas or personal/product bias. Outside blogs will clearly indicate the author, company and any relevant affiliations.
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