Litigation Hold and Enforcement

A litigation hold is designed to preserve all documents and electronically stored information that may be relevant to litigation. Enforcing and managing a legal hold involves discrete processes and requires corporations to orchestrate activities across multiple stakeholders. Courts have imposed severe penalties against parties who have failed to meet these preservation obligations.

The FRCP requires that companies have demonstrable and consistent practices for responding to and enforcing a litigation hold across a myriad of applications and content repositories and across heterogeneous platforms and distributed IT environments.

In theory, adopting litigation response best practices and using tools to automate key activities around the legal-hold process would benefit the organization in several ways:

• It could provide manpower cost savings and process efficiencies.
• It would facilitate the management of multiple litigation events.
• It would enable the organization to demonstrate the consistency of its litigation response practices to the courts.

According to the data, companies have a long way to go to realize those benefits to their fullest extent.

E-discovery practitioners recommend that corporations adopt policies and procedures for enforcing the legal hold. IDC's research concludes that corporations are enforcing the legal hold on an application and content-store basis. When the potentially responsive ESI is located in an archival or records management application and the application features the relevant workflows and business rules, they would enforce the hold in place. Some corporations are also making the decision to ingest ESI from legacy media (like backup tapes and drives) and uncontrolled data stores (like their network file shares, servers and desktops) back into their content archives as a way to meet their preservation obligations.

Automated in-place legal hold is predicated on the existence of documented policies and technical procedures for the suspension of routine deletion practices. IDC's interviews with the legal and compliance practitioners conducted a month before the survey fieldwork suggest that corporations were only starting to formalize these practices. Yet the study shows an unusually high proportion of IT executives who claim that their existing content archiving and records management applications support automated legal-hold workflows.

While 86 percent of survey respondents claim to have formalized litigation communications policies in place, adoption of standardized processes and the ability to automate and document communications across records management, legal and compliance departments is lacking. Approximately 55 percent of the companies surveyed are still in the early stages of automating the litigation communication process, 29 percent are using voice communications and in-person notices and 13 percent are still using paper-based surveys. There should also be a way to provide continuous and auditable transparency of the hold duties and create linkages that validate custodian attestations with the actual state of the legal hold in the content repositories.