Legal Hold and Data Preservation Benchmark Report 2013

LegalHoldand
DataPreservation
BenchmarkSurvey2013
September 2013
Commentary by Brad Harris
Survey Conducted by The Steinberg Group LLC
© 2013 Zapproved Inc.

Executive Summary
Page 4 Survey Methodology
Page 4 About Steinberg Group LLC
Page 5 Part One: Survey Demographics
Page 14 Part Two: The Burdens of Data Preservation
Page 21 Part Three: Risks of Data Preservation
Page 29 What Next? – Suggestions For What You Can To Improve
Your Preservation Efforts
Contents

LEGAL HOLD AND DATA PRESERVATION BENCHMARK SURVEY 2013 | 2
The landmark 2013 Legal Hold and Data Preservation
Benchmark Survey is the most extensive survey focused on
how organizations handle data preservation. The objective
of the survey was to do the following:
• Benchmark the legal hold process in the industry
• Define, determine and compare processes and
systems currently used to manage legal hold issues
• Understand key pain points and challenges faced with
regard to current practices and legal hold process
SURVEY PARTICIPANTS
Five hundred twenty-five participants completed the online
survey and indicated that they actively manage litigation
holds. Of the 525 respondents, 55 percent are attorneys, 34
percent are legal staff, and the remaining 11 percent are
non-legal staff such as IT and records managers. A majority
of participants have more than 15 years of experience and
work in organizations with more than 15 attorneys.
KEY FINDINGS
Majority of litigation holds are still managed and tracked
manually.
More than half use manual/written processes for
tracking litigation holds, while one third used some form
of automated software tool, including commercial e-
discovery tools or custom software. One out of 20 still
rely on verbal legal holds.
Nearly half of respondents spend more than 5 hours per
month on preservation.
A sub-group of “Power Preservers” that issue 6 or more
holds per month comprised 14.5 percent of the sample.
This group is more than twice as likely to have an
automated legal hold process (64 percent), compared to
30 percent for the other users.
In-house legal teams are primarily responsible for
litigation holds and preservation.
Not surprisingly, a vast majority of legal holds are
overseen by in-house legal teams (82 percent) but some
organizations have another function such as IT (12
percent) while a small percentage outsource it to outside
counsel (6 percent).
Automating the litigation hold process increases efficiency
as well as the propensity to issue litigation holds.
When a litigation hold takes more effort, respondents
continued
Executive Summary

were less likely to proactively implement one. Those
using an automated legal hold management system issue
2.5 times the number of holds in same amount of time.
The impact is even greater when looking at those that
spend less than 5 hours /mo. on preservation; they issue
four times the number of holds as those who don’t
automate.
When looking at current system/process satisfaction levels,
automated users are 80 percent more likely to indicate a
favorable rating.
In total, half of the sample indicated satisfaction with
their current process, but the group using an automated
process showed a favorable rating 72 percent of the
time, compared with only 40 percent for those with a
manual process. Additionally, automated users were 3
times more likely to give “very favorable” responses.
Conversely, automated legal hold issuers showed
unfavorable ratings only 7 percent of the time compared
to more than a quarter of those using manual processes.
In looking at confidence in the face of a hypothetical
deposition, respondents using a manual process were 3.3
times more likely to express a lack of confidence than
respondents on an automated system.
Overall, 62 percent of respondents expressed confidence
in their current process, but when looking at it based on
their current processes, those using automated
processes indicated confidence 77 percent of the time
compared with 57 percent on manual processes. In
looking at the other end, more than 15 percent of
manual hold issuers show a lack of confidence,
compared to less than 4 percent on automated
processes.
Most survey participants consider their processes “above
average,” but those on manual processes are nearly 20
times more likely than automated users to indicate a
“below standard” self-assessment.
Overall, 62 percent of respondents expressed confidence
in their current process, but when looking at it based on
their current process there is a significant divergence.
That jumps to 81 percent of respondents using
automated litigation holds. On the contrary, only 0.7
percent of those on automated systems rated their
process as below average, compared with 13.5 percent
of their peers on manual processes.
Automated systems increase the propensity for observing
“best practices” by nearly a half.
Examining the sub-processes of a litigation hold, namely
issuing reminders, requiring custodial compliance,
following up with custodians and sending release
notifications, the respondents on automated processes
showed on average 85.4 percent compliance compared
to 56.8 percent.

Survey Methodology
The Legal Hold and Data Preservation Survey measures
what the prevailing attitudes of participants were at the
time of the survey. The survey was conducted from March
27, 2013 to May 17, 2013 using an online questionnaire.
Respondents in the survey came from lists compiled of
people who work in the legal profession, including
attorneys, paralegals and support staff within law firms.
While more than 800 individuals took the survey, the
sample was further screened for those who currently
issued legal hold notices because the survey’s objective is
to ascertain current attitudes. The final sample was
comprised of 525 respondents.
The margin of error is +/- 4.5%.
About The Steinberg Group
The Steinberg Group provides marketing research and
marketing analysis services. With over 25 years experience
in the market research and marketing fields, we offer each
of our clients a customized approach to solving their
marketing research challenges.
David Steinberg is the founding partner of The Steinberg
Group, LLC. Mr. Steinberg has more than ten years of
agency-side marketing research and 15 years of corporate
side marketing experience. He has designed and
implemented over 500 survey research and focus group
projects for consumer brand, education and government
clients. Mr. Steinberg holds an M.B.A. from Pepperdine
University and a B.A. in English Literature from the
University of California at Los Angeles.
Corporate experience includes marketing and research
roles in Insight Schools (a subsidiary of University of
Phoenix and then Kaplan Education), Crayola (a Hallmark
Company) and Knowledge Learning Corporation (home of
the KinderCare brand and part of the Knowledge Universe
organization).
n=525

PART ONE:
Survey Demographics

Survey
Sample by
Job Title
The survey sample only included individuals that affirmatively acknowledged
that they are responsible for managing litigation hold processes. When looking
at titles, the sample was distributed as follows:
• 55% of participants were attorneys
• 34% were litigation support or paralegals
• Remaining 11% were non-legal staff responsible for administering legal holds,
such as records managers
More than half
of sample are
attorneys

Current
Legal Hold
Processes
Keep in mind, the Legal Hold and Data Preservation Benchmark Survey sample
is comprised only of individuals that handle legal hold processes. That is still a
fraction of the overall legal community.
When asked about their current process, here’s what we learned:
• One third used some form of automated software tool, including
commercial e-discovery tools or custom software
• More than half use manual/written processes for tracking litigation holds
• One out of 20 still rely on verbal legal holds
Majority of Legal
Holds Are Still
Manual
Automated
Software
System
34%
Manual
Process
53%
Verbal Legal
Holds
5%
Other
8%
Current Legal Hold Process

15+ years
58%
Less than 5
years
7%
5-14 years
35%
More than
15
attorneys
55%Less than 5
attorneys
22%
5-14
attorneys
23%
ORGANIZATION SIZE
55% work in an organization made up of 15+ attorneys, while 22% work in
firms with less than 5.
EXPERIENCE
58.4% of those surveyed have 15+ years of experience and only 6.6% have
less than 5.
Staff
Size and
Experience
Majority of
Respondents are
Experienced and
on Larger Legal
Teams
Size of Legal Staff
Years of Experience

Legal Hold Volume and Time Commitment
NEARLY HALF HAVE LEGAL HOLDS AS A
‘WAY OF LIFE’
We measured the amount of holds and time spent
managing them and found that 48 percent spend more
than 5 hours per month, with the mean of that group
being 12 hours – or three hours each week.
This correlates to the volume data showing that while a
majority have less than one hold per month, 14.5 percent
issue 6 holds or more each month.
47.9%
37.6%
7.4%
2.1% 5.0%
Less than
1
1-5 holds 6-10
holds
11-25
holds
25+
51.8%
23.4%
9.0%
15.8%
Less than 5
hrs
5-10 hrs 10-14 hrs 15+ hrs
Hours per Month on Legal Holds
Legal Holds Issued per Month

Responsibility
for Legal
Holds
As one would expect, a majority of organizations give the responsibility for
overseeing legal holds to in-house legal teams. The survey was set to learn
what percentage “outsourced” this task to outside counsel. Based on the
survey results, that group is very small with just over 1 in 20 organizations
outsourcing. It will be interesting to track this trend and see how it evolves in
the future.
Some organizations do have non-legal departments that take ownership of this
task, most often the Information Technology group.
In-house Legal
Teams Manage
Preservation
Process in Vast
Majority of
Organizations
In-house
Legal
82%
Outside
Counsel
6%
In-house
Non-legal
12%
Oversight of Preservation Process

Process Maturity by Role
LEGAL STAFF MORE LIKELY TO AUTOMATE PROCESS THAN ATTORNEYS
When drilling down into how role plays into whether a process is automated or not, we see that Litigation Support and
Paralegals are 70 percent more likely to use a software tool to manage data preservation.
Automated
Hold
Process
23%
Manual
Hold
Process
77%
Automated
Hold
Process
51%
Manual
Hold
Process
49%
Hold Process Used by Attorneys Hold Process Used by Legal Staff

Process Satisfaction by Role
LEGAL STAFF MORE SATISFIED THAN ATTORNEYS WITH CURRENT HOLD PROCESS
Litigation support and paralegals rate their satisfaction with their legal hold process as being much higher than attorneys.
When comparing the top 2 (very satisfied/satisfied) levels against the bottom 2 (dissatisfied/very dissatisfied), legal staff
are 30% more likely to consider themselves satisfied than attorneys.
2.8%
10.7%
25.5%
34.0%
27.0%
1 2 3 4 5
2.5%
20.4%
30.6%
35.7%
10.6%
1 2 3 4 5
Attorneys’ Satisfaction with
Current Hold Process
Legal Staff’s Satisfaction with
Current Hold Process

2.9%
14.1%
37.6%
33.6%
11.8%
Don't
Understand
Fully
Understand
Employee Training on Preservation
WHILE 7 OUT OF 10 TRAIN
EMPLOYEES ON LEGAL HOLDS, LESS
THAN HALF BELIEVE EMPLOYEES
‘GET IT’
Two questions focused on the level of training
within the respondents’ organizations. Of those that
gave responses, most have some training for
employees but less than half responded that
employees are tuned into their obligations which
suggests more training is necessary.
• 70 percent of respondents affirmed that their
organization trains employees about legal
holds.
• When asked about their perception of whether
employees understand, only 45 percent
selected “fully understand” or “mostly
understand.”
Do Employees Understand Preservation Obligation?
30.0%
70.0%Yes
No
Does Organization Train Employees on Legal Holds?

PART TWO:
The Burdens of Data
Preservation

The Burdens of Data Preservation
The survey was designed to explore current processes and what
impact they had on the amount of time and satisfaction of those
overseeing litigation holds. We compared responses on several axes,
including the following:
• Manual Processes vs. Automated Systems
• Hold Volume
o ‘Power Preservers’ (see inset box)
o Low-volume preservers issue 5 or less holds/mo.
Legal Holds per Month
1-5 holds
37.6%
Less than 1
47.9%
POWER PRESERVERS – 14.5 PERCENT
A sub-group that issues 6 or more holds per month and
comprised 14.5 percent of the sample. This group is more than
twice as likely to have an automated legal hold process (64
percent), compared to 30 percent for the other users.

Disposition
of Legal
Holds
More than 6 Out
of 10 See Holds
Progress Further
Less than Half
the Time
43.5%
20.4%
16.3%
19.7%
<25% 25-49% 50-74% 75+%
Percent of Matters Proceeding to Collection or Discovery
Legal Hold Matters That Proceed to
Collection or Discovery
Litigation holds are the first step in preservation following a “trigger event.”
However, just because there is a “reasonable anticipation of litigation” does not
mean that the matter will progress any further., i.e. to collection or discovery.
The survey included a question to understand the correlation between issuing a
hold and the matter progressing beyond that state.
• 64 percent of respondents see legal holds progress to collection or
discovery less than half the time.
• 20 percent are on the other end of the spectrum and see matters in which a
litigation hold was issued progressing more than 75 percent of the time.

Process
Based on
Hold
Volume
Respondents with a high volume of litigation holds were two times more likely
to manage holds using an automated software system, which is not an
unexpected result given that systems are designed to streamline processes.
Further, the benefits of automating are significantly greater for those
organizations that need it more, inherently reaping more ROI from the
investment.
Power Preservers (6+ holds/mo.)
• 2 out of 3 rely on automated systems for overseeing legal holds
Low-Volume Preservers (5 or less holds/mo.)
• 7 out 10 are on manual processes for tracking legal holds
2 Out of 3 Power
Preservers
Automate Automated
Process
64%
Does Not
Use
Automated
Process
36%
Automated
Process
30%
Does Not
Use
Automated
Process
70%
‘Power Preservers’ Low-Volume Preservers

Time Spent On Preservation
Comparing VolumeAnd Process
AUTOMATING ALLOWS MORE HOLDS IN
SAME AMOUNT OF TIME
When comparing the amount of time spent on legal holds,
whether a user has high or low volume, the impact of
automation is clear.
• When using an automated process, those who spend on
average more than 5 hours per month on legal holds are
processing 2.5 times the volume as those using a manual
process.
• Those who spend more time on holds issue more than
two times the number of holds with an automated
process
• The impact is more dramatic for those who spend less
time: they issue 4 times the number of holds than those
doing it manually.
3.2
7.2
0.8
3.3
Less than 5 hrs/mo. 5+ hrs/mo.
Automated Manual
Legal Holds per Month (mean)

Rating Satisfaction with Current Process
Power Preservers
POWER PRESERVERS THAT AUTOMATE ARE NEARLY TWICE AS SATISFIED
We asked Power Preservers to rate their satisfaction levels with their current process.
• 72 percent of those on automated processes rated their satisfaction as favorable
• 40 percent on manual processes rated their satisfaction as neutral or lower
• When comparing the “satisfied” and “unsatisfied” responses in aggregate, automated users are 1.7 times more
satisfied, a significant difference.
Satisfaction Rating - Automated Processes Satisfaction Rating - Manual Processes
0.7%
6.3%
21.0%
42.0%
30.0%
Very Unsatisfied Very Satisfied
4.3%
21.9%
33.5%
30.9%
9.4%
Very Unsatisfied Very Satisfied

Upgrading
62%
Not
Upgrading
38%
Upgrading
30%
Not
upgrading
70%
Intention to Upgrade Legal Hold Process
6 OUT OF 10 POWER PRESERVERS ON MANUAL PROCESS LOOKING TO UPGRADE
Those with a high volume of litigation holds regularly incur the challenge of staying on top of the data preservation
process. When asked about their desire to upgrade from the process they are currently using the results were stark:
• 62 percent of Power Preservers using a manual hold process are looking for a change
• 70 percent using automated processes are satisfied and have no plans to upgrade
Issues Legal Holds Manually Automated Legal Hold Process

PART THREE:
Risks of Data Preservation

Word Association with
“Legal Hold”
As part of the online survey, we asked participants
to type the first word that comes to mind regarding
legal hold. The answers varied and we have
illustrated the top responses below using a “word
cloud.” The larger the font, the more frequent it was
suggested.
The top three responses were :
1. Litigation
2. Pain
3. Retention
The Risks of Data
Preservation
The burden of litigation holds and data preservation stems
from more than just the effort and time of the legal staff to
oversee the process. It also comes in the form of the risk an
organization faces. Or, more accurately, the risks perceived
by those who are accountable for executing legal holds.
The survey aimed to explore current processes, what impact
they had, and the amount of time and level of satisfaction
for those overseeing the litigation hold process. The analysis
compared responses on several axes, including:
• Confidence in the face of a hypothetical deposition
• Meeting the current legal standard
• Perceived risk
• Best Practices

Rating Confidence with Current Process
CONFIDENCE IN PROCESS IS TWICE AS HIGH WHEN AUTOMATING
We asked respondents to rate their confidence levels with their current process if faced with a hypothetical deposition to
defend their preservation process.
• Those with automated processes self-report lower confidence much less often, and are over twice as likely to report
highest confidence
• Those who have already had to defend their practices are no more likely to be confident/less-confident
0.0%
3.5%
19.9%
39.7%
36.9%
Not
Confident
at All
Very
Confident
Confidence Rating - Automated Processes Confidence Rating - Manual Processes
2.6%
12.5%
28.3%
41.9%
14.7%
Not
Confident
at All
Very
Confident

23.3%
12.5%
9.7%
8.2%
22.2%
24.2%
<10% 10-24% 25-49% 50-74% 75-99% 100%
Percent of Matters with Legal Holds
Percentage of Matters with Legal Holds
LESS THAN HALF ISSUE LITIGATION
HOLDS IN 75 PERCENT OR MORE
MATTERS
Respondents were asked to indicate the percentage of
matters for which they issue litigation holds. Of those that
answered with a specific percentage, a picture emerged of
those that do or do not issue holds.
• 46 percent of respondents issue a litigation hold
notice in more than three quarters of their matters
• 23 percent issued holds for less than 10 percent of
matters
Percentage of Matters for Which
Legal Holds Are Issued

Rating Process for Meeting Current Standard
Power Preservers
AUTOMATING LEGAL HOLDS LEAD TO HIGHER ‘SELF ESTEEM’
We asked Power Preservers to consider how their process compares to their peers when it comes to meeting the current
legal standard on a scale of 1-5 with 5 being “Better than Most.”
• Those with automated process consider themselves to be meeting the standard much better than their peers.
• More than 50 percent of respondents using an automated system rated themselves at “Better than Most.”
0.0% 0.7%
18.3%
28.2%
52.8%
Worse
than
Most
Better
than
Most
Meeting Legal Standard Rating –
Automated Processes
Meeting Legal Standard Rating –
Manual Processes
0.4%
13.1%
31.8% 30.2%
24.5%
Worse
than
Most
Better
than
Most

Rating Risk
or Impact of
Legal Holds
We asked respondents to assess their risk or impact from legal holds. Those
who responded “medium” and “high” were seen to have considered
themselves as “At Risk.”
• Of those that made a choice, 54 percent of respondents consider
themselves to be “at risk.”
• Those who have had to defend their preservation practices more often
consider themselves at risk more than those who have not.
• Power Preservers with automated processes consider themselves at risk
less often than those without
Having to
Defend
Preservation
Increases
Perception of
Risk Significantly 13.5%
40.5%
46.0%
4.7%
28.6%
66.7%
Unsure Not at Risk At Risk
Automated Manual
Confidence Rating of Power Preservers:
Automated vs. Manual Processes

Defending
Preservation
Practices
About One of
Five Have Had to
Defend
Preservation
Efforts
It has become common practice in commercial litigation for opposing sides to
challenge each other’s preservation efforts. There are two categories in this
area: Those that have defended preservation and those that will.
So far, a small percentage of respondents indicate that they have had to
respond to inquiries about preservation. It will be interesting to track this trend
over time.
77.8%
22.2%Yes
No
Have You Had to Defend
Your Preservation Process?

Legal Hold Process Compliance in Four Key Areas
AUTOMATING HOLD PROCESSES ENCOURAGES BEST PRACTICES
Achieving the current legal standard of good
faith and reasonableness is challenging. The
survey looked at four key processes that are
considered integral to having an adequate hold
process:
1. Requiring tracking custodial
compliance,
2. Providing for regular reminders,
3. Following up with non-responsive
custodians, and
4. Sending release notifications.
Of those respondents with automated software,
they reported meeting these process elements
on average 85.4 percent of the time across the
board, as compared with 56.8 percent in
aggregate for those using a manual process.57.1%
66.8%
48.4%
54.7%
83.9%
87.2%
83.9%
86.6%
Release Notifications
Follow-Up
Periodic Reminders
Custodian
Acknowledgment
Automated Manual

After reading the results of the Legal Hold and Data
Preservation Benchmark Survey 2013, you may be
motivated to examine your own data preservation
processes. Following are several actions you can take to
address areas in which many organizations can use
improvement.
AUDIT CURRENT PRESERVATION PROCESS
Continually re-evaluate your efforts by measuring their
effectiveness and whether they meet the threshold of the
current legal standard. Does the process involve an effective
written hold to which custodians acknowledge affirmative
compliance? Do you send regular updates and reminders?
Are you sending release notifications?
PREPARE TO DEFEND PRESERVATION
When responding to opposing counsel for documentation of
your legal holds and data preservation practices, what is
your confidence level in responding? If it is wavering, make
certain your goals include process consistency and capturing
a detailed audit trail.
EMPHASIZE TRAINING AND A CULTURE OF COMPLIANCE
One telling response was that despite many organizations
training employees, there was a gap between those that
provided training and those who felt employees understood
what is expected of them. Work internally with the
stakeholders to find opportunities to refresh the message
with employees about the importance of the preservation
process that demands their attention.
EDUCATE YOURSELF CONTINUOUSLY
This is a fast-moving area of the law. Stay on top of case law
and take every opportunity to learn about best practices
from leading experts and peers.
What Next?
SUGGESTIONS FOR WHAT YOU CAN DO TO IMPROVE YOUR PRESERVATION EFFORTS
RESOURCE
Download “Legal Hold and Data
Preservation Best Practices” (Dec. 2012).
It’s a comprehensive resource with the
latest thinking by leading experts in
electronic discovery.
www.legalholdpro.com/resourcecenter

Legal Hold and Data Preservation Benchmark Report 2013

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