I have advocated for some time that a corporation or law firm is well served by having a position for eDiscovery Program Manager, responsible for managing the support functions related to litigation, regulatory matters or audits. This position is an enhancement of the Legal Hold Administrator position often found in companies, if they have any such organizational structure at all. I would like to emphasize and explain the need for “Program” as part of that title, and that legal hold management is an integral part of the larger eDiscovery program.

Whenever corporate management or a law firm contemplates a build-out of an eDiscovery group or position, legal hold management is often regarded as the only task or process; rarely to they recognize those legal hold processes as a part of a distinct program with many important activities. For most people, legal holds are something you issue as a one-time activity, unique from past or future legal holds; there is little continuity seen in the exercise, and little recognition of the supporting activities that take place. They may see this as just as software purchase, with templates to fill in and mostly automated tracking processes along with a few automated reports.

Since this narrowly-focused view centers on the legal hold itself, there is no recognition of the significant activities surrounding the function, which in fact is what makes up a Legal Hold Program. Then there are other activities that are distinctly eDiscovery-program related, such as processes to follow Federal Rules of Civil Procedure (FRCP) requirements, that go beyond legal hold processes.

To get an understanding of the true scope of an eDiscovery program, first a general outline of legal hold process requirements:

  • Legal Hold Policy or Guidelines development, implementation and training;
  • Interaction with in-house legal counsel to develop the process for creation, distribution and eventual release and disposition of a legal hold;
  • Ability to link legal holds with other legal holds having similar topics, opposing company or individuals involved, etc. to avoid redundant tasks, and to build a “portfolio” of similar holds;
  • Relationship building with departments commonly involved in legal holds, such as HR, Records, IT, Finance, Compliance, with the ability to lead data identification meetings during legal hold creation;
  • Very strong understanding of the key components of a legally-defensible legal hold document;
  • Development of legal hold reports – includes strong communications/interaction skills to enable department involvement, executive input – to satisfy reporting needs at all levels;
  • Third party eDiscovery vendor relationships;
  • Legal Hold software training and interaction with IT for implementation, Executive level awareness training, and attorney training on processes and software;
  • Development of data map (data repository map) – locations, owners, accessibility, etc.;
  • Strong understanding by eDiscovery Manager of the Records Retention Schedule.
  • And especially, periodic legal hold certification process – I see this as a vital part of the legal hold function, and a key process that courts will definitely look favorably upon.

In addition, there are many eDiscovery program activities to be addressed by the Manager, some of which include:

  • Working with in-house and external counsel to ensure the company is meeting all relevant Federal Rules of Civil Procedure (FRCP) requirements in a timely manner;
  • Ability to serve as witness in deposition hearings or other Court-related discussions surrounding the legal hold and eDiscovery program processes;
  • Working directly with departments to identify, collect and preserve potentially relevant documents;
  • Interacting with third party eDiscovery vendor to transfer documents to their data repositories, and work with them on data analytics and review as needed;
  • Work with attorneys and/or paralegals to ensure compliance with court rulings, calendar, etc.;
  • Ongoing eDiscovery training for employees, managers and executives, to include onboarding awareness training, offboarding reviews for departing employees;
  • Policy and processes review, updating and dissemination.

Exterro has published an excellent blog post at http://bit.ly/2TRXpII that provides a composite of a day in the life of Christa Haskins, CEDS, E-Discovery/ESI Support Manager at Becton Dickinson. This report gives a good insight into the scale and variety of tasks that a competent eDiscovery Program Manager faces.

The very important duties and responsibilities shouldered by the eDiscovery Manager are obvious. Many of the tasks outlined here are not one-time activities; rather, they are ongoing demands on a Manager’s time and attention. This is certainly not a part-time position, or one that can be assigned to someone to “take care of” in addition to that person’s normal duties. The eDiscovery Manager must be knowledgeable and trained in eDiscovery processes, in addition to possessing strong information governance skills, or at least awareness of those responsibilities. This person must have strong communications and relationship-building attributes, in order to not just work on specific tasks with a variety of people but to continually ‘sell’ the need and importance of the legal hold process and eDiscovery in general.

For many companies and law firms, this specialized position may best be filled by an experienced and respected eDiscovery consultant. An eDiscovery consultant can work with any eDiscovery vendor chosen by the company to manage the software; that person will be responsible for the many legal hold and eDiscovery tasks that are both a part of the software suite or lie outside of that functionality. The software application is essential to a legal hold program but is not a “total solution”; all the tasks and processes required for legal hold and eDiscovery implementation make up the eDiscovery program, and a competent eDiscovery Program Manager makes it all work.