Being involved in the eDiscovery industry over a period of time now, both as a consultant and as an in-house employee, I have had many occasions to come in contact with eDiscovery software promotions and informational articles. Whether through vendor websites, blog posts, promotional literature at seminars and events, personal contact…a similar them pops up – the Legal Hold software is described as a “solution”, as in “Here’s the solution to your eDiscovery (needs, review, collection, litigation), pick your poison, we’ve got the “solution”. Sorry, folks…I love you all to death, depend on you for my business, and really do enjoy working with these tools, many of which are excellent. But they simply are not the end-all, do-all that will wipe away the tears and pain of frustration that corporations and law firms experience in addressing eDiscovery needs.

In fairness, I do understand that much of this hoopla is just that – it’s a marketing theme and meant to extol the virtues of a particular product. Consumers and purveyors of eDiscovery products should, and mostly do, recognize it as such. My contention is that this placement of product creates a false narrative, and false expectations. And that contention has proven out too often as well, in different ways.

eDiscovery software needs to be seen, and reviewed, as a tool; it is a mechanism that helps the Legal Hold Administrator, the attorneys, and the company organize and implement legal holds, to review and report on them, and to satisfy courts or regulatory agencies of their good faith in complying with litigation requirements (FRCP) or regulatory rules. This tool is part of a suite of processes and products that a well-prepared corporation or law firm develops and implements as its Legal Hold program, or eDiscovery program, depending on the level of sophistication involved. To take the thought further, I also believe the program itself is not a solution, either; it is yet another tool farther down the line towards achieving the solution…if there is such a thing.

I like using simple analogies, so for this commentary let’s look at a hammer:

I have a hole in my wall where I want to install a window. To do this, I’m building a window frame, so I have boards and nails. To fasten the boards together, I need to pound the nails into the board; I take a rock, a stick and some rope and fasten a “pounder”…voila, a hammer! One might say that’s the solution to that problem, but no…it’s a tool to get to the solution. I start pounding the nail in, but realize I’m missing the second board to be fastened; so I need to pull out the nail but can’t do so with my hammer the way it is; so I modify it, now I have a claw hammer. Solution? No…improved tool. So now I’ve got the frame built; my buddy shows up with refreshments to watch the ballgame; spouse shows up and says, “That frame ain’t gonna install itself, buddy.” So, I grab hammer, nails, putty and install the frame, and the window. Now, done! Solution? No, installation and implementation of program. Lastly, I show off my results to spouse, who says, “Honey, I want a picture window.” Hmmmm. Find more money, a saw, big hammer, create big hole, modify frame and install picture window. Now, if anything is a solution, we have found it – developing a program/plan, acquiring the tools, implementing program, and most importantly, being able to scale product and program. So all of these are tools; the end result can be described as being able to see outside through a big window…the solution.

Everything described in this simple scenario is applicable to both the tools (products) and the program you need to develop for a successful Legal Hold program. The software, like the hammer, must “fit the job” – it must be modifiable, responsive, user-friendly and scalable. The program itself must also be scalable – small window to big window; you must be able to review how well the tools are working/responding, whether the program results meet with client/corporate requirements; and the results or processes themselves must meet expected demands. As in the scenario, a critical issue is that all of this is within budget or that the budget has built-in flexibility to accommodate change in scope.

So, what’s the answer – the ‘solution’, if you will? I don’t necessarily believe the word solution belongs in the eDiscovery tools conversation at all, even though it is an accepted part of marketing. But that can be where the disconnect begins. What is needed is a better perception of the Legal Hold software as a tool – a very good tool, I might add – to start or improve a company’s eDiscovery program. And the program itself needs to be seen as a “process tool” as well.

Any company with litigation or regulatory matters to manage must have not just certain tools, but also a strong Legal Hold program; not just a process, but a program that folds these processes, including the necessary software, together in a cohesive manner that is responsive to litigation requirements or regulatory audit needs and timelines. The Legal Hold/eDiscovery program is not a solution, either, but a dynamic set of tools, processes and guidelines that integrate this program into the company’s infrastructure and organizational strategy.

Legal Hold software is a “master tool” that contains inter-dependent and specific tools, such as the legal hold document, reporting function, audit, custodian/attorney tracking, etc. It must also be dynamic, that is, adjustable and scalable to meet changing organizational needs, legal culture changes, and of course growth & sophistication changes in the eDiscovery industry itself. The Legal Hold program must have similar capabilities and attributes; and the company or law firm must be committed to assign an in-house person dedicated to managing the program, or budget for and hire a qualified consulting company to manage the program for them. Courts have little time or sympathy for parties (or their attorneys) who are too uninformed, unprepared or unwilling to meet those requirements; and, conversely, they appreciate those who do show the effort and dedication to fulfill those requirements.

I plan to publish a separate post on the development and implementation of a Legal Hold program – its structure, intent, implementation. But for now, I hope to just put a bit of a “hold” on some of the hyperbole around Legal Hold and eDiscovery software in general; there are some amazingly great products out there, with dedicated vendors and teams that provide excellent service…both to me as I work with them to implement a program for clients, and to the clients themselves when involved with specific matters. I hope the clients will just recognize the software product as the tool it is, and not as a magic wand solution.

Please feel free to contact me if you wish to explore the world of eDiscovery and Legal Hold administration in more detail.