Imagine inheriting a legal matter on a Friday afternoon. You have forty custodians, multiple collaboration platforms, no legal hold on file, and opposing counsel expecting a meet-and-confer by Monday morning. The previous firm missed the production deadline, and now you're responsible for explaining what you'll preserve, collect, and produce.
This scenario, discussed at RelFest Chicago on October 1, 2026, isn't hypothetical for most eDiscovery teams. It's the kind of crisis that exposes gaps in your legal hold program and forces you to make defensible decisions with incomplete information. Understanding why these mistakes happen and how to prevent them is crucial.
Why These Mistakes Keep Happening
Legal hold failures often result from execution issues, not ignorance. Most teams know they need to preserve relevant information, but unclear ownership and missing infrastructure lead to breakdowns. When a matter moves quickly or responsibility shifts, the hold process becomes a game of telephone. By the time someone realizes nothing went out, custodians have deleted emails, IT has purged chat logs, and your client is explaining the gap to a judge.
Another common issue is scope confusion. Teams issue a hold but fail to account for new data sources, departing custodians, or systems with automatic deletion policies. The hold exists on paper but doesn't protect the information at risk.
Mistake 1: Treating Preservation and Collection as the Same Thing
Why it happens: Under pressure, teams conflate "we need to preserve this" with "we need to collect this now." This confusion leads to costly weekend collection sprints that overlook sources not immediately collected.
The consequence: Information preserved in place costs less and protects more. If a lower-priority custodian's data disappears while you're collecting from the top ten, you'll need to explain that loss.
The fix: Separate preservation from collection in your response plan. Identify what IT can preserve in place, such as disabling auto-delete or applying litigation holds in Microsoft 365. Prioritize collections based on relevance and risk, not urgency alone. Document why you're collecting from certain custodians first and what you've done to protect the remaining sources. If you can't justify the prioritization to a judge, reconsider the approach.
Mistake 2: Issuing a Legal Hold Without the Information to Support It
Why it happens: Teams issue a broad hold to "cover everything" while they figure out the details. This notice reaches custodians who don't know what you're asking them to preserve or where to find it.
The consequence: A vague hold doesn't preserve anything. Custodians ignore instructions they can't follow, and IT can't implement technical holds without specific systems and accounts. When you later discover gaps, you're explaining why the hold you issued didn't work.
The fix: Spend the first hours gathering enough information to write a defensible notice. Identify custodians, systems holding relevant information, and who has the access and authority to protect it. If immediate action is needed, involve IT in preserving systems while you develop the custodian list and scope. A hold that reaches the right people with specific instructions protects more than a rushed notice sent to everyone.
Mistake 3: Assuming Custodians Can Collect Their Own Data
Why it happens: Self-collection sounds efficient. You're short on time, and custodians know their own files better than anyone else.
The consequence: Custodians don't understand scope, metadata, or completeness. They'll miss attachments, skip folders, and apply their own judgment about relevance. When opposing counsel questions gaps or asks how you ensured completeness, you're left defending an approach that offered no controls.
The fix: Use technical collection tools that preserve metadata and capture complete data sets. If you must rely on custodians for initial identification, provide detailed instructions, verify results, and document the process. Better yet, involve IT or your eDiscovery vendor in collections that require defensibility.
Mistake 4: Running Privilege Searches Without a Review Plan
Why it happens: Teams run search terms and withhold everything that hits, thinking it protects privilege.
The consequence: A search-term hit identifies a document to examine, it doesn't establish privilege. Withholding documents based solely on keyword matches creates an overbroad privilege log and invites challenges. Producing privileged material after a "thorough" search process is worse.
The fix: Treat privilege searches as a routing tool, not a final determination. Combine search terms with AI or senior attorney review to evaluate flagged documents. Sample your results to confirm accuracy. If your matter qualifies, seek a Federal Rule of Evidence 502(d) order early to protect against inadvertent disclosure. Build time and budget into your plan for privilege review.
Mistake 5: Committing to Technology Without Understanding the Workflow
Why it happens: Generative AI and continuous active learning sound like solutions to an impossible timeline. Teams adopt the technology hoping it will solve the review problem.
The consequence: AI tools require decisions about training data, validation, and human review. If you commit to AI-assisted review without understanding how you'll evaluate results, address privilege, or explain the process to opposing counsel, you've added complexity without reducing risk.
The fix: Choose technology based on what it helps you accomplish, not what it promises to automate. If you're using AI to prioritize human review, define the sampling or validation approach. If you're using it to process documents quickly, plan for quality control. Confirm your vendor or platform can handle the data sources involved. Align the workflow with your client's expectations and budget before you commit.
Prevention Checklist
Your response plan should answer these questions before the crisis call:
Who can issue a legal hold in your organization, and who needs to approve it? Establish clear ownership so holds don't wait for unavailable decision-makers.
What information does IT need to implement technical preservation? Provide templates and escalation paths so IT can act without waiting for detailed custodian interviews.
How will you identify custodians and data sources quickly? Maintain current system inventories and key-player lists for your most likely litigation scenarios.
What preservation options exist for each data source? Know which systems support in-place holds, which require immediate collection, and which have auto-delete policies that need manual intervention.
Who owns each task in your collection and review workflow? Assign responsibility for custodian interviews, IT coordination, vendor management, and privilege review before you're working under a deadline.
How will you validate AI or technology-assisted review results? Define your sampling approach, quality-control process, and documentation requirements in advance.
What can you produce on a rolling basis, and what requires complete review first? Understand your flexibility to produce high-confidence document sets while additional work continues.
If that call comes at 4:47 on a Friday, you won't have time to design your process. You'll execute the one you've already built or explain to a judge why you didn't have one ready.
