Discovery Response and Legal Hold Process Development and Update Service

STRATEGIC	FOUNDATIONAL				EXECUTION			MANAGEMENT
Maturity Assessment & Strategic Roadmap	Records/Data Retention Policy & Schedule Data Security Classification Policy	AI Governance Privacy Program	Discovery Response & Legal Hold	Governance Processes and Procedures	Data Placement & Automation	Behavior Change Management & Training	Legacy Document & Data Disposition	Ongoing Management & Monitoring
Information Governance Organizational Development

Develop a Discovery Response Process (Discovery Response Process) Procedure

Develop a Discovery Response Process Procedure: an organization-specific, customized step-by-step guide to executing Discovery Response Process. The procedure addresses all phases of the Discovery lifecycle. Also includes the review of draft procedures with in-house and outside Counsel as appropriate, and incorporation of needed changes, if needed.

Develop a Discovery Response Process Workbook and Workflows

Develop a Discovery Response Process Workbook and Workflows, which is intended to be used for tracking progress for each matter in which the company’s Discovery Response Plan is invoked and acts as a case management document for each legal matter, allowing client’s inside counsel and paralegals to easily track discovery activities.

Microsoft 365 Enterprise Rollout

Create scripts and input files in hands-on sessions with client personnel to configure the baseline metadata, library templates, retention labels and sensitivity labels in M365 for future use in provisioning M365 for retention. This may include working with SharePoint Online, OneDrive, Email, and/or the Compliance Center, depending on the overall strategy established in the Data Placement Strategy project.

Develop Templates

Develop customized templates intended to complement the Discovery Response Process Workbook. These templates provide for the defensible and consistent preservation and collection of relevant data related to matters associated with litigation and/or regulatory inquiry.

Develop Defensible Practice Documents

Develop Defensible Practice Documents, customized to match client’s litigation and business needs. These client-customized documents include definitions of a Discovery Response Process team, roles, responsibilities (governance matrix) and metrics (measuring Discovery response).

Create Discovery Conference Preparation Guide

Contoural will create a Discovery Conference Preparation Guide document designed to provide outside counsel with client’s expectations of how eDiscovery should be conducted in any legal matter, in addition to other litigation readiness attributes.

Develop Protocols for eDiscovery Phases

Develop protocols for eDiscovery phases which are reference guidelines for the variety of methodologies including using existing technology or identifying any new requirements applicable to common discovery activities. Provides alternate options if a deviation from standard operating procedures is indicated or warranted. Describes scenarios for when alternate approaches may apply.

Conduct Knowledge Transfer and Training

Conduct Knowledge Transfer and Training, including the preparation of training materials and an onsite (or virtual) visit to review deliverables to educate client’s Legal and IT staffs on the various elements and uses of the Discovery Response Process, and incorporation of any necessary changes at the instruction of counsel. Includes training for Legal and IT functions on how to use the Discovery Response Process Workbook and associated templates.

Top Three Discovery Response And Legal Hold Resources

Strategies for Creating and Maintaining ESI Data Maps

Strategies for Doing More eDiscovery in House

How to Protect Data Under Legal Hold When Applying Automatic Disposition

Essential Discovery Response And Legal Hold Questions

How do we create a compliant and defensible process for triggering our discovery response process to retain information?
When do we not need to trigger our process? How do we document our decisions for either triggering or not triggering?
How do we defensibly determine the scope of the legal hold, ensuring it is neither too narrow nor too broad?
How do different groups including legal, IT and business units communicate and coordinate for any given legal hold?
How do we ensure the process is consistently invoked across all participants, even if an individual or group of individuals are unavailable or out of the office?

How do we document our compliance?
How do we coordinate preservation across multiple systems across all relevant media?
How do we ensure that automated disposition does not spoliate the holds?
How do we track a number of legal holds?
At what point do we release a legal hold when the matter is adjudicated?

Contoural's Discovery Response And Legal Hold

“Discovery” is the requirement that organizations identify, collect, preserve, analyze, review and produce information for legal proceedings. When such action is reasonably anticipated, a “legal hold” is issued: deletion of relevant documents is suspended.

Because of their urgency, discovery actions and legal holds can be expensive and disrupt business operations. Waiting for litigation to occur can be both risky and expensive – especially for companies with high litigation profiles. Because of their urgency, responding to discovery and placing legal holds can disrupt business operations and consume available resources, making it hard for a company to get out of the reactive discovery mindset. Instead of waiting for discovery requests to appear, organizations need to anticipate and prepare for future litigation requirements.

An important goal of an information governance program is to develop proactive processes and procedures that lower risk and reduce cost, and implement them outside the glare of matter-specific discovery. An investment in proactive information management will have a much bigger impact in terms of cost savings than attempting to make a reactive eDiscovery process more efficient.

The first and most critical stage of litigation discovery – the identification and preservation of potentially relevant documents and information – depends on counsel’s ability to recognize the obligation, and to issue timely and effective legal hold notices to information custodians. The timing and scope of a legal hold are critical; if counsel misjudges either, sanctions, or even adverse verdicts, can result. As described below, a proactive Litigation Readiness program can help reduce the risks and costs that might otherwise be associated with delayed action or incomplete execution of a legal hold.

Once an effective legal hold is in place, the subsequent stages of eDiscovery – including collection, processing, review, and production – also present risks and obligations for corporate counsel, as well as significant opportunities for reducing enterprise risks and discovery costs, through both good information governance practices and the strategic use of culling technologies. As part of its overall Information Governance roadmap, a company should consider developing a Discovery Response Plan (Discovery Response Process) that guides corporate counsel (and other stakeholders) in the consistent and repeatable planning and execution of each stage in the process. Additional steps, as outlined below, include selection and preparation of witnesses who may need to testify during depositions or discovery conference proceedings and the application of appropriate technology tools to support cost-effective review and production of ESI during the discovery process.

It is worth noting that other components of an Information Governance program can multiply the savings achieved by more efficient discovery response processes. As the amount of redundant, obsolete and trivial data it retains is reduced (decreasing its total data footprint), the company can, thereby, reduce the amount of data that must be preserved and processed in response to litigation needs over a period of years. The potential eDiscovery cost savings can provide powerful motivation for a litigation readiness initiative, especially in litigation-intensive environments.

Legal Holds Can Impact Past and Future Data

When a litigation matter involves a specific past event or transaction, a well-framed discovery request will explicitly state the timeframe, in terms of the earliest and latest document dates that are covered by the request. Counsel can then frame the legal hold notice in terms of the requested timeframe. Depending on the situation, the required legal hold and discovery timeframes can go back several years.

In other cases, the discovery requests – and legal hold notices – may cover all documents and messages that contain relevant content, or that involve certain individuals or departments, without a specified time frame. In the absence of an effective Information Governance program, the scope of legal hold and discovery in such cases could include obsolete data that has been retained for many years or even decades in historical systems and storage media.

When a litigation matter could involve ongoing behavior or actively changing data sets, the legal hold may effectively require preservation of new records and information as well as pre-existing documents and data. Furthermore, an organization may need to impose multiple, cascading legal holds that apply to a given document, custodian, or repository.

Multiple and cascading holds can become particularly burdensome if the relevant documents and data have been stored on the same media or otherwise commingled. In such cases, the organization may need to retain all of the documents for a very long time, i.e. until all the holds have been released for all the affected documents.

All Repositories Can be Deemed Accessible

A legal hold applies to relevant data no matter where it is located, including legacy repositories or backup tapes that have not been touched for years. In the past, parties were able to argue that such ESI was “inaccessible,” and would cause undue expense and/or hardship to retrieve. As technology has improved, the “accessibility” defense has become less about the difficulty to retrieve older information from obsolete systems and more about the cost of doing so. If the data can be accessed – even with great difficulty or at high cost – then the court may consider, in its decision about whether to allow such discovery, the likely impact of the information, the estimated costs of retrieving and producing the data, and the equitable allocation of those costs among the parties.

Defining an Effective Legal Hold Process

Keeping in mind the requirements and issues outlined above, corporate counsel should work with appropriate stakeholders and resources to identify likely custodians and repositories and then initiate and manage each step in the Preservation phase of eDiscovery. Consistent adherence to the complete process, and documentation of each completed step, will help ensure that the preservation process is effective and defensible in the event a party’s actions are ever called into question by the court. A good legal hold process will also include effective methods for establishing and tracking the custody of the material that has been placed on hold, whether that material is retained in its original locations, or immediately collected and stored separately to ensure its preservation and integrity. Finally, a process must be put in place to handle discovery requests against the body of held records. Good legal hold processes require close cooperation between corporate counsel, IT teams, and records custodians.

Getting Control of eDiscovery Risks and Costs

In addition to the professional requirements, and the risks of sanctions or adverse decisions, corporate counsel must avoid the high costs of excessive collection and processing by outside vendors — and the resulting increases in review costs as well.

In-house Counsel need to develop and maintain sufficient knowledge and expertise to manage an outside vendor. Counsel must not allow the vendor to drive the discovery strategy, as well as its execution, without some level of oversight and control. While most vendors will be reasonable, there is, of course, a motivation to collect as much information as possible, and to store that information as long as they can manage to charge for doing so. To properly control discovery costs, Corporate Counsel must 1) work to limit the scope of data collected by the vendor and 2) understand the processes and the implications of storing the proposed volumes of collected data. Outside vendor activities should be part of any Discovery Response Process. Once that plan is in place, counsel must monitor and audit outside vendor activities on an ongoing basis.

If an outside vendor is allowed to propose and execute a strategy that collects excessive volumes of data, the collection and hosting of that data can become very expensive. Costs can escalate even further when outside counsel proceeds to review those excessively large volumes of data. Technology can be used to reduce the volumes of collected data, and the costs of using this technology must be considered as well.

The goal in any legal matter should be to negotiate a reasonably narrow scope of discovery. This scope should discourage “fishing expeditions” and monitor and control the execution of the collection, processing, and review phases.

Creating a Coordinated In-house Discovery Response Plan

As part of an Information Governance roadmap, a company should consider developing a Discovery Response Plan that guides Corporate Counsel and other stakeholders in the planning and execution of each stage of the discovery response process. The Discovery Response Process should be customized to address an organization’s litigation profile, and reflect industry best practices, as well as the company’s needs and resources (in the context of typical litigation and regulatory examination scenarios). The Discovery Response Process should include workflow diagrams to demonstrate discovery phases and a summary workflow to show how all phases fit together.