I nternal legal departments typically have an established process to ensure that, once litigation is anticipated or filed, preservation hold directives are communicated to employees in a timely manner. However, Legal often has difficulty precisely identifying and conveying the relevant terms for the items that need to be held.
This challenge stems from several related and overlapping issues. Legal and the business (the rest of the organization whose staff receive preservation hold directives) use different terminology or “jargon”. Legal is often unfamiliar with information that is generated by the rest of the business, while the business does not know exactly what information could be relevant to a particular legal issue.
When holds are issued, the matter may be so broad that thousands of “false hits” are returned. This tends to create confusion as to what information should be placed on hold, what is not relevant to the matter, or even what to produce in response to discovery requests. As result, anything that might be associated with the matter could be, and typically is, put on hold.
Disconnect between the legal department and the remainder of the business led to discovery inefficiencies and excessive legal review expense
Develop a process, tools, and liaison resources to increase efficiency
Uncertainty about document relevancy can become prohibitively expensive when the matter reaches the stage where document production is required. With legal review for privilege and responsiveness costs consuming almost 75% of every dollar spent on eDiscovery, minimizing the number of documents to be reviewed is an imperative for most organizations. At the same time, culling hundreds of thousands of potentially relevant documents down to the 1,000 or so that could actually be relevant and responsive to litigation inquiries must be performed efficiently, without sacrificing quality and risking spoliation.
Our client, a Global 100 company headquartered in Europe, operates in several highly litigious industries. Its North American business unit is no exception as it manages numerous, simultaneous lawsuits, including many that span multiple years and that require significant document production.
Prior to Access Sciences involvement, generating and culling a list of potentially responsive documents for a matter was performed manually, and in some cases, not at all. All documents, including “false hits” (typically 40-50% more documents that were actually responsive) were placed on hold and a list was maintained that could be referenced, if and when a matter went to court. Once a matter went to court, the listed documents had to be reviewed to determine what was actually relevant. This expensive and resource intensive process was clearly not optimal, but was perpetuated because “this was the way it has always been done”.
In an attempt to bridge this disconnect, our team created a process that structured and streamlined the holds process, and created a partnership between the Legal and the business. As is often the case, once you get a group of people in a room and get them to work together, the disconnect closes. Decisions can be made quickly and accurately faceto-face, where it would be error-prone and take days to do via email. Our team helped the client work towards ensuring that all relevant information was being properly held, and produced without undue burden and expense, for any given legal matter.
In addition to creating these tools, we provided liaisons to expedite the process. These resources were not only intimately familiar with the process, but had a handle on both legal and business terminology. This knowledge helped bridge any communication gaps that may have occurred in the process. Our liaisons met with key stakeholders within Legal to keep on top of all current and upcoming legal matters that might require information holds. They also facilitated “internal meet and confer” meetings to ensure that all SMEs and stakeholders were involved, and in agreement about what information needed to be held. They were on point for production requests, ensuring that all information relevant to a production request was produced in a timely and efficient manner, coordinating with outside counsel and outside copy vendors as necessary.
Upon the completion of this project, our client was better able to handle the complexities of placing records on legal hold while being responsive to document production demands and deadlines, avoiding spoliation, and minimizing the prohibitive costs of legal review for privilege and responsiveness.