Technology has done great things for the legal field, but sometimes tech tools aren’t as simple to use as we might hope. Anyone who has tried to create a Microsoft 365 legal hold can attest to this fact.
Unfortunately, holds are an unavoidable task for eDiscovery professionals. Without a defensible litigation hold process, you could quickly find yourself on the wrong end of sanctions and other adverse consequences.
Microsoft 365 legal hold tools can help in this process. However, using Microsoft’s legal hold tools can be both challenging and time-consuming. Fortunately, there are new resources available that simplify these issues for eDiscovery professionals.
Here’s what you need to know.
The Hold Jungle: Navigating 3 Key Legal Hold Challenges in Microsoft
If you’ve ever created a legal hold in Microsoft 365 , you already understand how complex the process can be, but we thought we’d break down the three challenges that are likely to give you the biggest problems. Put simply, Microsoft’s legal hold tools are a blessing — and also one of the biggest headaches you could possibly encounter.
1. Creating a Legal Hold in Microsoft
Litigation holds in Microsoft 365 can be set up through the Compliance Center or through PowerShell commands. This sounds simple and straightforward on the surface, but that’s pretty par for the course. After all, no company is going to advertise a data preservation tool by saying, “You’re probably going to pull your hair out over this, but at least it’ll get the job done.” In reality, the simple act of creating a legal hold in Microsoft is one of the biggest challenges of MS 365 holds.
First, there’s not even a single process to accomplish this feat. The steps for placing a hold will depend entirely upon the type of account you have. We touched on this process in our guide on Microsoft 365 Litigation Holds, and there are various licenses, admin dashboards, application wizards, and other complex steps required. And through all of this, you could still encounter issues with identifying all relevant data, preserving it, and making it searchable.
When it comes to identifying relevant data, users may have trouble because they don’t recognize all relevant sources, they have access to incomplete data, or because they don’t fully understand legal hold policies.
When it comes to preserving data, the potential issues could fill up an entire section of this guide. In fact, they do.
Lastly, issues often arise with making data searchable since this data is raw and typically lacks classification. Incomplete data indexing, subpar data retention policies, security controls, and even data volume can exacerbate these issues.
2. Preserving Relevant Data in MS 365
Another of the biggest issues you’ll encounter with MS 365 legal holds is data preservation. While Microsoft's data retention policy is robust, the legal hold process can “miss” data in certain situations. For instance, organizations running Core eDiscovery will have trouble preserving user reactions, code snippets, audio conversations, and feed notifications. Similarly, eDiscovery professionals often have to utilize advanced searching or PowerShell scripting to find certain preserved information.
There’s also the challenge of preservation duration. Legal holds can be in place for extended periods of time. This creates unique challenges for both the preservation and management of large amounts of data over significant timeframes. In some instances, the easiest way may be to import files from Microsoft into tools that can handle large volumes of discovery data like Logikcull. That simple step can ensure that data remains unaltered for the duration of the hold.
3. Third-Party Apps and Data Volume
This brings us to the final challenge we want to discuss today: data volumes. Microsoft 365 generates a massive amount of data. This can include emails, documents, chats, and more. Managing and preserving all this data — particularly if multiple legal holds exist — can be complicated. Fortunately, tools like Logikcull Preserve can assist with any data storage needs without increasing costs.
Then there’s all that non-Microsoft data. There is no single tool available that handles everything an organization needs. For example, your accounting software isn’t going to deal with human resource tasks. QuickBooks could probably make those long, awkward “Sexual Harassment in the Workplace” seminars more efficient, but things would probably get a little confusing for the employees present. So in all likelihood, your organization uses a variety of third-party apps.
This means that additional data sources must be identified and preserved, making the jobs of eDiscovery professionals even more difficult. Fortunately, there are tools that can simplify this process as well. For instance, Logikcull’s Preserve in Place feature already allows users to preserve Google Data as they're issuing a hold. The same is about to happen with MS 365 data.
Non-Compliance Is No Joke
Mistakes are made in organizations nearly every day. In most cases, these are small, inconsequential mistakes that can be easily rectified. However, failing to properly preserve data is a serious compliance failure, and it can result in severe penalties.
If you fail to issue a legal hold when appropriate — or fail to do it correctly — the outcome won't be pretty. In addition to spoliation issues, the courts may issue sanctions. We saw this in Marsulex Envt’l. Tech v. Selip S.P.A back in 2019. The court granted the motion for sanctions made by the plaintiff based on the defendant’s failure to implement a discovery hold or preserve relevant evidence.
If you make the same mistakes with a legal hold in Microsoft 365 you could be hit with the following:
- Adverse presumption
- Dismissal of certain defenses or claims
- Financial penalties (e.g., attorney fees)
- Strike whole or partial pleadings
- Default judgments
- Adverse jury instructions
- Evidence exclusion
These sanctions may sound severe, but they could be completely proportional to the seriousness of the offense.
Microsoft 365 can present many legal hold challenges, but it’s necessary to find ways to overcome them and ensure that evidence is properly preserved. While you can try to do this manually, that approach is wholly unnecessary considering the tools available today.
Why work harder when you can work smarter?
A Simpler, More Reliable Way With Legal Hold Software
Whenever a new legal tool becomes available, it’s often cumbersome at first. This has proven to be true with legal holds in Microsoft 365. However, improvements to such processes eventually show up — and in this case, those improvements are Logikcull’s legal holds and Preserve in Place features for MS 365.
Here's a preview of how Preserve in Place for MS 365 — which will be available for Logikcull users in April — will work:
Preserve in Place simplifies the steps necessary to implement an effective legal hold that avoids potential spoliation and sanctions. This new tool allows eDiscovery professionals to preserve any relevant data within their Microsoft 365 apps at the same time they're creating a legal hold in Logikcull. Not only can this save a substantial amount of time, but it also locks potentially responsive data from the outset of a matter. This means data is preserved in its entirety and cannot be accessed — thus avoiding sanctions.
By utilizing Preserve in Place for MS 365, you’re showing a good faith effort to preserve evidence. This is often all that’s needed to avoid legal sanctions.
On top of this benefit, the automatic locking feature also simplifies the process of managing and accessing information. And while you may be concerned about using a “new tool,” Preserve in Place has already been successfully used by Logikcull users who utilize Google Workspace. In fact, this feature saw a 1,600% increase in usage since early 2022.
Conclusion
The challenges of handling legal holds in Microsoft 365 are endless. Even the process of sending a litigation hold notice can be cumbersome, and once that’s done, eDiscovery professionals still encounter issues related to preservation due to data volume, third-party apps, data identification, cost, and more.
Logikcull’s Preserve in Place functionality can overcome the most common challenges in the Microsoft 365 legal hold process — and many others. By merely automating the tasks that take up far too much of your time and effort, Preserve in Place allows you to focus on other important matters while easing your mind regarding potential sanctions. Simplifying your job while reducing anxiety? What more could you ask for?
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To learn more about how Preserve in Place can benefit your eDiscovery team and streamline the Microsoft 365 legal hold process, book a quick demo with us today.
