Ride the Lightning

LITIGATION HOLDS: WHAT ARE THE BIG GUYS DOING?

October 16, 2008

When I lecture, I always point out the obvious: when your spinach is sending people to hospital and your cattle, who can’t stand up but you kill them anyway and send hamburgers to market that kill people, you are probably under a litigation hold. You can reasonably anticipate in both cases that litigation will ensue.

Litigation holds seem to be fraught with fog – clients have trouble understanding when they are under a litigation hold and what, precisely, the duties of a litigation hold really are. So . . . if you were wondering what the “big guys” are doing, we now have a new survey to give us some guidance. CGOC, a practitioners’ forum focused on records retention and preservation practices, and Huron Consulting Group, a provider of financial and operational consulting services, have just released the results of a survey on legal holds and e-discovery practices of Global 1000 companies. The findings highlight the changes in processes and technology within these companies and the methodologies used to issue legal holds, manage preservation, and conduct e-discovery.

For me, one of the more striking statistics was that 80% of respondent companies issued legal holds for every matter, while 20% used risk and case analysis to determine which matters required legal holds. I am not arguing with the latter approach, merely noting that it is interesting. Also of interest, approximately 85% of the respondents used Atlas LCC legal holds software, while 14% used Access databases and Excel spreadsheets, and the remaining 1% developed their own custom software.

If you read the judicial opinions, the failure to appropriately follow litigation holds is a sure invitation to sanctions, so this may be worth reading.

You may find the survey here.

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