Brett Burney
Image: Stockbyte, Getty Images
Legal holds have been receiving a lot of attention lately. They were a hot topic at LegalTech New York and they continue to be in the news, as well as a topic for judicial scrutiny.
In January, The Honorable Judge Scheindlin of the Southern District of New York issued the Pension Committee v. Banc of America opinion where she established that a failure to issue a written litigation hold could amount to gross negligence since the failure will likely result in the destruction of evidence.
None of this should be a surprise. Legal holds are a sacred tradition in civil litigation. But with the relentless intensity and limitless capacity of digital data, the responsibilities around preservation are mutating faster than the legal profession can adapt.
Legal holds have expanded beyond the four corners of a written notice. Irrepressible amounts of electronically stored information reside in numerous structures inside an organization. The legal hold process now shackles the entire enterprise -- not just the law department. Company lawyers can no longer manage the hold process in a bubble and must rely on IT professionals and records managers to comprehensively identify, collect, and preserve data for litigation matters.
This may not be a huge undertaking if the company has 100 employees. But when you have 10,000 or 50,000 employees, you turn to a vendor like PSS Systems, who offers an application like Atlas Suite to help you wade through the unending undercurrent of legal hold notices, information management, and data disposal.
The Atlas Suite aims to link the disparate silos of responsibilities borne by legal, IT, and records managers. At many companies, these entities operate in isolation from one another. That means tasks are mismanaged and duplicated unnecessarily, which ultimately translates into wasteful spending.
Many PSS Systems customers reside in the upper echelon of the Fortune 500 list. Some customers are well over the 100,000 employee mark and surpass several billion dollars per year. Not to mention that the majority of PSS Systems customers are publicly traded companies, which subjects them to multiple and various regulatory nightmares above and beyond electronic discovery.
In massive, multinational companies, implementing a successful legal hold is like lassoing a squirrel in a herd of cattle. It can be impossible to know exactly where data resides, and tracking hold notices for several thousand employees can be quite hopeless. But that's exactly what Atlas assists with.
The challenge, however, is that the Atlas Suite can be as complex as the solution it's trying to solve. The product boasts multiple layers of functional, integrated lines of communication that can't be covered in a single review.
Designing a successful legal hold process is not a simple weekend project. It requires the involvement of multiple divisions and departments of a company who must work together to properly label data sources, identify organizational structures, and enable information systems to converse appropriately.
Atlas provides modules that focus on discovery obligations (holds, notices, collections, etc.), cost analytics, information governance, and a toolbox of connectors that allow the Suite to navigate data contained in other products deployed at a company. (e.g. e-mail archiving, document management, backup storage, etc.)
The Enterprise Discovery Management module undergirds what PSS Systems calls "rigorous discovery" -- a consistent approach to managing defensible legal holds that incorporates open communication with IT.
For in-house lawyers, signing on to the Atlas dashboard provides a snapshot of current matters and general activity surrounding the management of legal holds at the company. For example, the My Alerts panel allows you to quickly see who neglected to reply to the high-profile hold you recently issued.
Figure 1. When a lawyer logs on to Atlas, their dashboard alerts them to follow up recently issued hold notices.
The Matters tab lists the matters that have been populated into the system and allows company lawyers to drill down into the holds, collections, and custodian interviews that have been issued. I appreciated the master list under each matter where I could quickly apply filters and see what people and data sources still required action.
Figure 2. The Matters tab lists the current matters that involve a legal hold. Since most companies will have dozens or hundreds of holds at any one time, the search feature at the top enables one to quickly locate a particular matter.
Figure 3. When you click into a matter, a page lists action items at the bottom and the right side to provide a quick listing of related holds, collections, and interviews.
When you're ready to issue a legal hold, Atlas provides a text editor where you can compose the hold notice as an e-mail message and require confirmations, as well as instruct the system to send reminders. A similar screen allows you to create interview templates to be sent out to employees to inquire where they store certain documents, if they use removable storage media, etc. Atlas manages all of the communications involved with legal holds and custodian interviews, which is far superior to using an Excel spreadsheet to manually track everything.
Figure 4. When you create a new hold, Atlas provides a text editor to compose the notice, which can include confirmations and reminders.
Not only does Atlas track legal hold notices, it traces the costs involved with each matter. It is well established that discovery accounts for a large chunk of the overall litigation costs. So any tool that can provide more visibility into those costs is welcome indeed. The cost scenarios generated from Atlas enables a litigation team to better forecast which matters will be more expensive and perhaps seek settlement earlier rather than later.
I found Atlas to be flexible in analyzing costs. For example, the cost section for individual matters allows you to compare the actual, known costs with the forecasted costs. Or you can view the bigger picture from the cost tab within Atlas which shows the "most expensive matters" or the "cost per matter type."
Figure 5. Each matter provides a cost section where you see the actual, typical, and forecasted expenses for the matter.
Figure 6. Cost is always a concern in litigation and Atlas provides a high-level overview of costs incurred for all matters. Not only is this useful to pinpoint the most expensive matters, it is helpful to forecast which types of matters may need immediate attention.
Lastly, the Atlas Suite incorporates a full body of reports that cover everything from active matters to hold activities to organizational structures. Obviously, these reports are extremely helpful for defining litigation strategy or explaining a preservation process to a court.
It's important to emphasize that Atlas is not just for the legal department. IT is a mandatory participant in today's legal hold process so it makes sense that the Atlas Suite includes a Discovery for IT module.
Atlas underpins the fluid communication between the legal department and IT professionals. Lawyers can't be expected to know where every server and backup tape physically resides, but Atlas provides the collaborative platform enabling legal and IT to accurately pinpoint relevant data sources. Once a legal hold is created, IT professionals can use Atlas to track their assigned collection tasks in the context of individual data sources. Atlas also provides insight into how legal holds are affected by a master or local records retention schedule.
Figure 7. A dashboard specific to IT professionals includes important alerts, as well as workload reports for employees.
This interoperability works very well for accurately preserving data, and consequently works just as well for disposing of data. When it comes to data storage and management, it can be most convenient to simply "keep everything." After all, who wants to be responsible for the litany of meetings necessary for determining how long documents should be retained, and when they should be destroyed.
Not exploring those options, however, creates unnecessary risk and cost burdens for a company. There is no valid reason to keep data that is not subject to a legal hold or some other regulatory directive. The Atlas Suite enables IT professionals and records managers to engage in the defensible disposal of data that is no longer needed subject to a regulation or litigation matter. Atlas automates the process of notifying the proper parties when disposition is necessary, after cross-referencing whether the data is subject to any other legal or regulatory requirements.
For small and midsize companies, the Atlas Suite from PSS Systems would be like using an 18-wheeler to haul two Bankers boxes of documents -- there are other vehicles better suited for managing a handful of legal holds per year.
That doesn’t mean you should completely disregard the Atlas platform because it represents the forefront of legal hold technology and therefore it will direct the future of similar technologies.
In fact, PSS Systems was busy at LegalTech announcing their Information Governance Suite 5.0 for reducing legal risk and IT cost. That may not sound that exciting until you realize that the company is putting the spotlight on the far left of the E-Discovery Reference Model (EDRM) known as Information Management. Information management continues to be a virtual black hole for many lawyers who have never been comfortable discussing records management and information lifecycles.
For example, one of the new features in 5.0 is a visual "inventory analysis" that can provide all interested parties (legal, IT, records) with a snapshot of what data sources are getting the heaviest dose of holds. This information can be helpful for the legal team so they can see where the most relevant data is housed. The information is more helpful for the IT folks who may have to balance the workload on high-priority systems.
Figure 8. Atlas now provides an inventory analysis with a visual overview of the data sources with the highest priority for the legal holds in place.
PSS Systems is building Atlas to provide essential insight into the black hole of information management by successfully connecting legal, IT, and records managers. And it's just in time too, since the subject of legal holds continues to heat up the e-discovery world.
Brett Burney is principal of Burney Consultants, based in Cleveland. A member of Law Technology News's Editorial Advisory Board, he writes a monthly column for the Law.com Technology Center.
