What to Do When You Get That Litigation Hold Letter

Lawyers Serving California

Whether you are a business executive or low level employee, you’ve likely received a warning at some point in your career to preserve your emails due to a pending dispute or litigation. When the possibility of a lawsuit becomes real, many parties will send out “litigation hold” letters requiring a company to hold onto any documents or communications that may be relevant to the dispute.

Litigation hold letters must be treated very seriously, and the knowing failure to abide by one can lead to accusations of intentional destruction of evidence and even the possibility of sanctions. For this reason, all general counsel and corporate executives should have policies and procedures in place to ensure an efficient and effective response to a litigation hold request.

Pay Attention to What Is Required in Rancho Cucamonga

Litigation hold notices do not require a business to preserve every record or email it has ever created. Particularly for large corporations, this would be impossible. Instead, they typically relate to a certain matter or dispute that is the subject of possible litigation and require the recipient to locate and hold onto any records related to that matter.

For this reason, the first step in responding to a litigation hold is to carefully review what is being asked of you. Consider the matter at issue and the individuals likely to have relevant information or records about that issue. Then consider how the matter can be described in a comprehensive, but clearly defined way that will allow your employees to quickly locate potentially responsive records.  

Making the prospect of locating and holding onto records more time-intensive or arduous than necessary will only discourage employees from putting in the effort necessary to ensure compliance with your legal obligations.

Disseminate Notice of the Hold Broadly

After considering the requests made in the litigation hold letter and the matter at issue, you likely will identify certain top executives or key players who will be in possession of relevant records. While it is important to inform them and any key custodians of the litigation hold request, the obligation does not end there.

It is important that all potentially relevant employees be notified, in writing, as to the specific records and documents being requested. They must be directly asked to review their files, both electronic and paper, for anything that might be relevant. Employees should also be encouraged to ask questions or seek clarification if they are unsure if documents are responsive, rather than erroneously exclude certain materials from their search.

A litigation hold notice to employees should also make clear that records can come in many forms. While we often think of memos and emails, records can include calendar entries, day planners, text messages, voicemails, and even social media. Your employees should be taking care to ensure that all of these potential sources of information are being reviewed.

Make Sure Your Efforts Are Documented

Mistakes happen and important documents do occasionally get deleted.  Despite your best efforts, responsive materials can occasionally slip through the cracks. The best way to prevent this from having an impact on your litigation position down the road – and preventing the possibility of sanctions – is to clearly document your efforts.

This documentation should be done externally and internally.  Within your organization, make sure that instructions for searching and preservation are kept in writing and saved for future reference. Encourage employees to keep records of the searches they conduct and to provide written reports of their preservation efforts and the results.

Similarly, any response to a litigation hold letter should carefully detail the steps that have been taken to comply, including notices sent out and documents reviewed. To the extent that you have deemed certain categories responsive or unresponsive it is also helpful to detail these decisions in a response, thereby placing the burden on the opposing party to object to your approach.

California Attorneys Helping You Anticipate Litigation

A good strategy for dealing with litigation hold letters can go a long way towards helping your company anticipate and prepare for litigation more broadly. Getting an early understanding of the documents relevant to a legal matter can give your team a better sense of your strengths and weaknesses, and let you know when it may be time to bargain.

At CKB Vienna LLP, our attorneys can help you create and manage a litigation hold response, or review your existing policies and procedures. For more information, contact us online or at 909-980-1040.