Legal hold software helps keep, and keep track of, potential legal evidence. There are several options available, but it's important to select the package that best meets your specific needs, and implement the software correctly. Here's advice from the field.
DO consider integration with a collection and processing system. According to Guidance Software, which sells EnCase Legal Hold, many current legal hold solutions do not provide an integrated technical means to systematically collect and process data from custodians subject to litigation holds. These systems, Guidance says, merely send and track e-mails to custodians, often while promoting custodian self-collection, which has drawn harsh scrutiny from the courts and presents risks such as noncompliance, under- or over-collection, meta-data alteration or spoliation, inadequate chain-of-custody documentation, authentication challenges and business disruption.
For a higher degree of risk protection, Guidance and others argue, it's best to consider a system that comes with the native ability to track and report on the collection and processing of data, or that tightly integrates with other e-discovery systems that can do so. In Guidance's case, users can issue litigation holds, interview custodians, monitor compliance with the holds and track the progress of collection and processing of potentially relevant data, all in a single case database.
Autonomy's sales pitch emphasizes the system's additional features, such as automated data identification, preservation and collection with notification and interview management, and the ability to automatically suggest custodians and data sources.
Meanwhile, Kazeon says it integrates seamlessly with retention providers such as NetApp's SnapLock, Data Domain's Retention Lock and Symantec's Enterprise Vault. According to Kazeon, this feature provides extensive defensibility and auditability for e-discovery by ensuring no spoliation of data and no modifications of meta-data.
DO look for a legal hold system that integrates with your e-discovery processes. At Hershey, Klinger wanted a system that acts as an extension of the company's e-discovery program. Exterro's Fusion, he says, automates and streamlines Hershey's e-discovery process, and provides critical integrations with data lockdown solutions that search, crawl and archive information.
For more on e-discovery, see a case study of NBC Universal's move to bring e-discovery in-house.
DO consider in-place functionality. Systems such as Kazeon's KazHold and Autonomy's Aungate provide both a copy-and-move function and another called in-place legal hold, which locks data where it resides on the network and modifies file permissions so that only the legal hold owner has access. Users that had permission to access the file previously will still be able to read it, but not destroy it.
This feature, Kazeon says, delivers early assessment capability while avoiding collection challenges. It allows corporations to quickly freeze information in place for initial assessment, then copy and move only what's relevant, saving network bandwidth, processing time and storage expense.
The alternative is the system making a copy of the document and moving it to a secure storage system. After the move, a data integrity and verification test is performed to ensure data integrity and chain-of-evidence preservation.
The downside, Logan says, is user inconvenience. "They go to their desktop—their most personal place—and find they can't open a file. It just doesn't make sense—it's a total user no-no," she says.
DON'T overlook the biggest discovery risks. According to PSS Systems, it's important to find a legal hold system that can help you overcome the Big 7 discovery risks:
- Failure to identify the right custodians.
- Missing rogue or employee-managed data sources in hold or collection.
- Missing data when an employee transfers or departs.
- Retiring or modifying data on hold.
- Failure to follow through on data identified in interview process.
- Overlooking or mishandling data in collection.
- Inability to assemble or defend the discovery audit trail.
DO look at the vendor's road map. The legal hold software market is in a state of evolution. For that reason, Klinger says, it's important to be familiar and comfortable with the chosen vendor's road map. In the case of Exterro, his team liked the fact that the vendor's e-discovery offerings were more than just a point solution. In addition to Fusion Legal Hold, Hershey plans to implement Exterro's entire enterprise solution suite.
"Next up, we will be implementing their discovery workflow management module, and we'll begin using Genome, their automated data-mapping solution," he says. He particularly likes that Exterro's road map is focused on the legal industry. "It's clear that they understand the challenges faced in the legal industry and are committed to providing software that can deliver real benefits in cost and time savings," he says.
DO consider the cloud. According to Wood, the market for e-mail- and workflow-based hold notification is commoditizing, especially with the arrival of SaaS self-service systems. Enterprises willing to pay $250,000 for on-premise licenses are becoming scarce, she says, and midmarket companies want more aggressive pricing and more convenience. "That's why vendors like Exterro and PSS have been diversifying, to capture more of the market," she says.
Zapproved Legal Hold Pro starts at $150 per month, and price is based on the number of matters per custodian. IDC says this will appeal to corporate litigants with small or one-off legal matters because of its simple pricing model and ease of deployment. Exterro's Cloud Fusion targets law firms, charging them on a per-matter, per-client basis, Wood says. "It's a good way to reach enterprise companies who have no intention of purchasing legal hold at all on their own, and opens up Exterro's market to a law firm customer base," she says.
Although the cloud is appealing, Wood says some users may hesitate to store legal data there. "It can be a tough sell because of the legal sector concerns about security and access, but I think e-discovery is inevitably going in that direction, even if the purchasing decision is more cost-driven than due to acceptance of the risks," she says.
DO consider early case assessment. Providers of legal hold software are busy moving to what Taylor calls the right-hand side of the Electronic Discovery Reference Model, particularly adding analytics capabilities for early case assessment. "This is a way for lawyers to quickly analyze large groups of documents early in the process, to get a good strategy going and to cut down the size of the data set," she says.