Legal Holds

What is Legal Holds?

When litigation is contemplated, legal hold software enables legal departments to manage the process of preserving potentially relevant information by issuing holds, polling data custodians, and tracking compliance.

At base, legal hold software identifies and preserves electronically stored information (ESI) that is potentially relevant to litigation or a government investigation. ESI is information stored in an electronic medium and retrievable in perceivable form.

An individual or organization is under a legal duty to preserve evidence for pending or future litigation when evidence is under its control and the party knows or should know the evidence is relevant to the litigation. To fulfill its duty, a party must suspend routine document retention and destruction procedures and put in place a legal hold (also known as litigation hold) to ensure the preservation of documents relevant to litigation.

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Who uses legal hold software, and why?

Corporate legal departments use legal hold software to help fulfill their duty to preserve evidence in pending or future litigation and lessen the risk that evidence may be modified or deleted. Failure to comply with a litigation hold can result in sanctions against the organization and its attorneys.

What features does legal hold software include?

Legal hold software may tag electronically stored evidence and reduce user access and privileges to it where it is stored (aka, an in-place hold). It may also collect potential evidence and effectively remove it from possible deletion or modification.

Some legal hold software vendors provide tools to notify custodians of pending litigation and inform them of the duty to preserve relevant evidence. The software can also survey the custodians on the nature and location of evidence in their possession. Features of legal hold software in this directory include:

  • Audit trails to ESI identified as evidence.
  • Collection and preservation.
  • Data security.
  • Data loss prevention techniques.
  • Legal hold issuance and tracking.

Who is a “custodian” in e-discovery?

A custodian is anyone who has administrative control over electronic documents, emails or files. For example, you may be considered the custodian of files on your own computer or emails in your email account. In an organizational or corporate setting, a network administrator may be a custodian.

How can my legal department use legal hold software?

Use legal hold software to record legal hold notifications to custodians and query them on the location of electronically stored evidence relevant to litigation. After the evidence is identified and located, use the software to preserve it in place or collect it to keep it from deletion or modification.

Alternatively, many corporations have enterprise data archiving or management software to identify custodian files, place legal holds on them, and collect them for safekeeping. Suppose a legal department uses enterprise software to place legal holds. In that case, it can send out legal hold notifications to custodians using mail-merge or document automation software and track return-receipt notices via email.

Should I choose legal hold software that is cloud-based or on-premises?

If the data to preserve is in cloud-based repositories, it is most efficient to choose cloud-based, legal hold software-as-a-service (SaaS). Legal hold SaaS uses application programming interfaces (APIs) to connect to various cloud repositories and file-sharing services, such as Amazon S3 (Simple Storage Service), Box, Dropbox, Google Drive, and Microsoft 365. These APIs can collect files or, if possible, apply in-place holds on the evidence to meet preservation requirements.

If the data is on-premises, it is most efficient to use legal holds software that works locally. It connects to on-premises repositories owned by the corporation and custodial desktops and mobile devices. Look for on-premises legal holds software that can apply in-place holds on evidence or collect it to meet preservation requirements.

If data is stored on-premises and in the cloud (hybrid storage), use legal hold SaaS. The corporation is moving to the cloud, and SaaS would be the most efficient and forward-looking to meet ongoing preservation needs. You may have to work with APIs to connect to local storage and legacy systems.

Should I select legal hold software from an all-in-one or an a-la-carte software provider?

One thing about pending and future litigation: it can continue to trial at once. Choosing an all-in-one e-discovery provider that includes legal hold software is most efficient. If a case proceeds to trial, you can connect custodians under holds and their data to the e-discovery system for processing, review, and production.

Alternatively, choose a full-featured legal hold software with notification tracking, preservation, and collection support from an a-la-carte software provider. The time and transfer costs of moving custodial collections at the early stages of discovery to a full-service e-discovery provider are much less than after data processing.

What should I expect to pay for legal holds software?

Legal hold software pricing is most cost-effective from an all-in-one e-discovery provider. All-in-one e-discovery vendors generally charge on a per-user or matter basis with possible additional per gigabyte costs to upload data for processing, host it for review, and store it in the cloud. An all-in-one e-discovery system may include legal hold software as a loss leader for more advanced and costly e-discovery needs in processing, review, and production.

Vendors separately price legal hold software in multi-year contracts, generally three to five years. For midsized and large enterprises, the cost can rise to tens of thousands of dollars based on the number of custodians or matters, with additional charges per gigabyte of data collected and hosted over time. There may be implementation costs for connecting to on-premises or cloud-based storage systems. On-premises software vendors have no storage fees, but you are responsible for all storage costs, including hardware, operating system, and maintenance.