With the growth of knowledge workers, ubiquity of content creation tools and subsequent explosion of electronically stored information, new challenges have arisen in the Early Case Assessment phase of eDiscovery and corporate governance enforcement. Initially, identifying all data sources and creating an organizational data map was an enormous challenge. But with that issue better understood now, how does a corporation move tens of thousands of documents and multiple terabytes of information to a central repository for Legal Hold (also known as Litigation Hold)? Does all data need to be moved to a central Legal Hold repository? Furthermore, how does a corporation identify a confidential or privileged document and lock it down throughout the entire network quickly and swiftly to avert an information leakage crisis? The big question becomes how legal and IT teams can place a hold on relevant information at the source or “in-place” for a rapid assessment, investigation, and/or IT policy enforcement while maintaining the chain of evidence and/or allowing business operations to proceed.
Unfortunately, status quo will not work; CHANGE is needed! The traditional approach copies all data and replicates it, which requires more storage and expense, as well as not protecting the document in native formats. This also leads to the classic problem of over-collection and retention which is not only expensive from a storage and network utilization standpoint but also from a liability management standpoint because the corporation is now required to maintain the entire dataset under Legal Hold in a pristine fashion. Further, without a proper Legal Hold technology, data and meta-data are prone to spoliation during the process of movement to a repository.
A proper Legal Hold strategy needs technology in-house, in addition to process and people, to implement, manage and enforce it in order to ensure no spoliation occurs. People and process alone cannot guarantee fool-proof Legal Hold capabilities. Protecting documents and information, as well as maintaining the chain of evidence for defensibility is the highest priority for the eDiscovery process. The Legal Hold technology must be a disruptive technology that guarantees data and meta-data integrity and equally importantly, must be able to prove that the data and meta-data did not change during the course of the litigation.
Legal Hold is an entire workflow that should be well integrated with the overall eDiscovery process; it cannot be a point solution that is detached from the rest of the litigation support solution. The main components of Legal Hold are:
1.Legal Hold policy – process established by corporate legal team
2.Legal Hold notification – provide notification to custodians on legal hold of their documents
3.Legal Hold implementation – enforcement of legal hold to prevent modification or deletion
4.Legal Hold release – remove legal hold as required by policy
5.Legal Hold workflow – identify custodian, custodian data, assign to case, establish docket number etc.
6.Legal Hold dashboard and reporting – detailed reporting of legal holds by custodian, case etc.
Legal Hold solutions need two key capabilities: In-Place Legal Hold and Target Legal Hold which allow legal and IT teams to place a legal hold on documents at their source, i.e. file server, email server, desktop, laptop, and/or storage systems, and then copy/move relevant documents to secure target repositories for litigation preservation. This capability greatly minimizes the risk associated with data and meta-data spoliation. The combination of In-Place Legal Hold and Target Legal Hold constitutes the best practice for corporations and legal service providers in order to maintain the highest levels of defensibility and spoliation prevention.
The first feature, “in-place legal hold”, places a lock on any potential material information where it resides on the network and modifies file permissions, so only the Legal Hold Owner has access. It is considered a ‘transient’ process to protect content while early decisions are being made. For example, potential relevant information on a laptop in Asia, desktop in Europe, or server at corporate headquarters can be frozen on the device on which it is found with all metadata and content preserved intact. “In-place legal hold” provides an immediate lockdown of potentially relevant ESI with a click of a button. In-Place legal hold is released just as easily as it was set. This feature delivers a powerful early case assessment capability without the over-collection and retention challenges.
The second feature, “target legal hold to secure repositories”, executes a “copy or move” to a secure repository, then performs a data integrity and verification test to ensure chain of evidence preservation. This feature provides extensive defensibility and auditability for eDiscovery by ensuring no spoliation of data and no modifications to metadata attributes of files and emails. Legal holds can be released as soon as deemed appropriate per the legal staff’s discretion.
In addition, Legal Hold solutions need advanced defensibility mechanisms to not only prevent data and meta-data spoliation but also preserve a chain of custody across the Legal Hold process. Integrated data verification and audit logging are necessary to guarantee and prove a forensically sound Legal Hold process. Further, they must provide ample reporting capabilities to show Legal Holds across custodians, data sources, cases etc.
Some of the key benefits achieved through optimum usage of the Legal Hold capabilities of an eDiscovery solution are:
1.Rapid Early Case Assessment phase– delivers legal and IT teams the ability in real-time to identify information, lock it down in-place, review potentially relevant information quickly to determine litigation exposure or IT policy breach, and then move relevant information to target secure repositories for preservation.
2. Defensible and auditable process – In-Place legal and Target Legal Hold deliver a robust capability to preserve and maintain all relevant document content, as well as metadata content, to provide the highest possible defensibility and auditability for litigation and corporate governance policy enforcement.
3.Reduction in cost and infrastructure workload – In-Place legal hold institutes a legal hold of ESI at the informational source, which reduces the need to move data to a central repository thus reducing network bandwidth and storage system space.
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