When I talk to customers, one of their common challenges is to get custodians to acknowledge their Legal Hold notifications. This is even more important considering courts are increasingly imposing sanctions for inadequate Legal Hold notification and evidence spoliation (e.g., DuPont v. Kolon).
Why does this happen? Are custodians lazy? Do they not understand the severity of the sanctions? Are they intentionally not acknowledging so that they can delete the data? or something else...more basic.
Here are the top three reasons that custodians fail to acknowledge their Legal Hold notifications and the steps you can take to ensure that Legal Notifications are not ignored and that relevant data is preserved.
1) Custodians are confused and sometimes fearful when a notification is received: Most first time custodians don’t understand that the only reason they are receiving the hold notice is because they might have information that might be relevant to the case. They may feel that they are being directly investigated and this instills fear and action-paralysis in them. It is possible they will delay acknowledgement until they have found out more about the case from other people.
- Solution: Be extremely clear about the intent of the Legal Hold notice in the language. It will also go a long way if you sent a separate email before the actual Legal Hold notice informing them about the matter and their role in resolving the matter. Even better, personally call them on the phone, explain the notice, and answer any concerns. Most custodians will acknowledge right away after the phone call. Here is a quote from an experienced Legal Hold paralegal: “We get around 60% response rate on the first notice, 80% after 1st reminder and 100% after a phone call.”
2) Custodians don’t understand potential sanctions: Many custodians may understand that they are not directly involved but fail to understand the sanctions that may be imposed on the corporation if they don’t comply.
- Solution: Clearly outline in the notice and during the phone conversation, the sanctions and penalties that may be imposed if they fail to acknowledge the notice and delete relevant data.
3) Custodians don’t think it is urgent: Many notices are sent with a deadline of 21-30 days to acknowledge the notice. The body of the notice is lengthy and custodians may put off the notice to read at a later time. The language of the notice contains generic words about the need to preserve. However, 30 days to respond never conveys urgency.
- Solution: Keep the notice as short as possible so custodians read it in one pass and act upon it. Shorten the response deadline to as soon as possible. Use words (e.g., urgent, must, penalty for failure to) to convey urgency. Use rich text to highlight and bold specific areas of the notice like the call to action and the deadline.
The above are simple things to do and will boost your average response rate as well as lower the average response time. Remember many custodians don’t understand the legal process and need some education to alleviate their concerns.