Legal Hold Pro

New “General Counsel Survey” Shows Growing Legal Hold Gap

The University of Denver’s Institute for the Advancement of the American Legal System (IAALS) recently published the results of an extensive survey it conducted with GCs around the country.  The sample size is impressive which gives weight to the survey with 485 valid responses by ACC members with titles of General Counsel or Chief Legal Officer. Of those, only 367 were considered active litigants and were asked to complete the entire survey and they represented diverse sectors, company sizes and geographies.

The IAALS survey was wide ranging and looked at attitudes and opinions on in-house counsel about a variety of issues, but of particular interest to us is that the survey queried GCs specifically about their litigation hold policies.

Based on their responses, it sounds like awareness is high about the need to issue legal holds – with 84% claiming to have “Litigation Hold Policy” – but there is a large gap between that and techniques used to implement a hold. Here are the percentages of respondents that use the following techniques:

• 40% – In-house attorney team for implementing holds and/or conducting e-discovery
• 40% – Employee education on e-discovery holds
• 39% – Attorney education on holds or conducting e-discovery
• 30% – In-house coordinator for implementing holds and/or conducting e-discovery
• 24% – In-house interdisciplinary team for implementing holds/conducting e-discovery

The survey was conducted in late 2009, so it was prior to Pension Committee and subsequent opinions, but the small percentage of companies that are active litigants with good, basic processes is surprising.  Less than one quarter invite other departments to assist in legal hold procedures.

As recent court opinions have shown, we have to close the Legal Hold Gap where there is high awareness but little follow-through.  This idea is given credence when over 40% of the GCs surveyed do not believe that their company has sufficient in-house or outside expertise and infrastructure to implement “an adequate but targeted [litigation] hold without undue cost and delay.” There is a dissonance between the overwhelming majority (84%) claiming to have legal hold policies and the 40% saying they aren’t up to the task. As the first line of defense in litigation, it is clear more help is needed in outlining and implementing legal hold processes.

One final point is the desire to limit costs in litigation because a vast majority of GCs believe cases are decided on a cost-analysis rather than the merit of the case:

• 81% disagree with the statement: “Outcomes are driven more by the merits of the case than by litigation costs.”
• 88% disagree with the statement: “Litigation costs are generally proportionate to the value of the case.”

We have built Legal Hold Pro to address both issues by providing a better way to manage legal holds at a cost that is reasonable and accessible.  We’re here to help close the Gap.

Thanks to the IAALS and the ACC for cooperating on this survey, it’s a great snapshot of attitudes and hopefully regular updates will continue so we can observe changing attitudes towards litigation. If you are interested in reading the survey in its entirety, you can download it here.

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