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Hold it Right There – For Real This Time

Published January 13, 2022

Written by Doug Austin, Editor of eDiscovery Today

Early in my blogging career, I wrote a cleverly titled (at least I thought so) blog post titled “Hold it Right There”, which discussed the importance of legal holds and best practices for implementing a legal hold. A few years later, I re-issued an updated version of that post on a “Throwback Thursday”, discussing the importance of extending legal holds to other sources of data (like text and other messaging programs) and the benefits of using technology to automate the legal hold notification process.

But compared to today’s world, the blog post title “Hold it Right There” was a misnomer. Back then, we may have identified data for which we needed to apply a legal hold, but many (if not most) organizations still applied the “preserve by collecting” approach to preservation where you collected everything you might need, pushed it downstream and figured it out later. That approach doesn’t work anymore.

The IPRO Morning Show and EARLY EDA

I tuned into the IPRO Morning Show yesterday (available for replay here), with IPRO Director of Information Governance Nick Inglis and Director of E-Discovery Solutions Jeffrey Wolff (who joined IPRO as part of the ZyLAB acquisition last year) to hear them discuss performing early data assessment (EDA) for legal hold and how corporate legal departments can leverage technology to do so earlier in the eDiscovery lifecycle. Their discussion was terrific and it tied into similar points that I made in this IPRO blog post last year.

There were a couple of points Nick and Jeffrey mentioned during their discussion of the topic that I found particularly interesting:

Early Case Assessment (ECA) vs. Early Data Assessment (EDA)

People often confuse and conflate these terms when they mean different things. ECA is about risk assessment for the case in terms of cost of time and money to pursue or defend the case (which helps inform decisions, such as whether to litigate or settle) while EDA is about assessing the data early in the case to understand where the important data for the case exists.

Nick and Jeffrey used a skydiving analogy to differentiate them that I’ve never heard before: ECA is like being in the airplane and looking at the landscape before you jump, while EDA is what you’re doing once you’ve jumped, such as timing when you need to deploy the parachute, etc. I thought that was a pretty good analogy to differentiate the two! Maybe it will help people keep the two terms straight? I hope so.

Most Documents Collected Are Not Relevant

Jeffrey also mentioned that in many of the cases he has been involved with, 80% of the documents that have been collected are not relevant. That’s huge when you think about potential costs for processing and hosting those documents and reviewing at least a subset after culling. It’s also consistent with my experience in the cases I’ve worked over the years.

The Three Stages of Legal Hold Maturity

Back to my two original blog posts and the “Hold it Right There” title about which I started this discussion. IPRO and ZyLAB have released a terrific whitepaper titled The Three Stages of Legal Hold Maturity (available here). It occurs to me that the two posts I wrote years ago happen to coincide with the first two stages of legal hold maturity in this guide. The best practices I wrote about in each of those posts were the most mature that most companies could get in terms of legal hold management at the time.

But while both of those blog posts had the phrase “Hold it Right There” in the title, that phrase was a misnomer to where legal hold management was at the time. Not today. A truly effective and mature legal hold program today means in-place legal hold and early EDA means in-place assessment of an organization’s data. It’s no longer acceptable for four out of five documents collected to wind up not relevant to the case as corporations can’t afford the time and costs associated with pushing all that data downstream anymore.

Conclusion

So, this time, when I say “Hold it Right There” regarding legal hold management, I mean it literally. It’s not just a clever title anymore, it’s a literal description of a fully mature legal hold program that allows documents to be held where they reside. How do you get there? Check out the link to the discussion with Nick and Jeffrey, and the link to download the white paper I referenced earlier for help – they’re both terrific resources!

And for more educational topics from me related to eDiscovery, information governance, cybersecurity and data privacy, feel free to follow my blog, eDiscovery Today!