Understanding a Litigation Hold
A litigation hold, also known as a legal hold, is a directive issued by an organization to preserve all forms of relevant information when litigation is reasonably anticipated. This process is crucial to ensure that no data is destroyed or altered, which could lead to legal penalties or adverse inferences in court.
"The duty to preserve evidence begins when litigation is pending or reasonably anticipated" - Zubulake v. UBS Warburg
Initial Steps for Management
1. Stop Auto-Deletion Processes
First and foremost, suspend any automatic deletion or document destruction policies, including:
- Email retention schedules
- Document management system purges
- Backup tape recycling
- Mobile device wiping protocols
- Routine document shredding
2. Assemble a Response Team
Form a dedicated team to manage the litigation hold process, including:
- Direct participants in the disputed matters
- Supervisors and managers
- IT personnel
- Records management staff
- Legal department representatives
3. Issue and Document the Legal Hold Notice
Work with legal counsel to draft and distribute a comprehensive hold notice that includes:
- Scope of the hold
- Types of documents to preserve
- Time period covered
- Specific instructions for preservation
- Contact information for questions
Maintain records of:
- Who received the hold notice
- When they received it
- Acknowledgment of receipt
- Any questions or concerns raised
Implementation Steps
Map Data Sources
Create an inventory of all potential evidence locations:
- Email servers
- Network drives
- Cloud storage systems
- Physical document storage
- Mobile devices
- Backup systems
- Personal devices used for work
Establish Preservation Protocols
Work with IT to implement technical safeguards:
# Example preservation flag in document management system
SET_LEGAL_HOLD = TRUE
RETENTION_OVERRIDE = INDEFINITE
Ongoing Management and Review
Regular Monitoring
Conduct periodic assessments of:
- Hold scope and relevance
- Affected personnel changes
- Technology updates that might impact preservation
- Cost and burden of continued preservation
- Compliance with hold instructions
Documentation Maintenance
Keep detailed records of:
- All preservation efforts
- Changes to hold scope or distribution
- Compliance monitoring results
- Any preservation failures or concerns
Special Considerations
Remote Workers
Develop specific protocols for:
- Home office documents
- Personal devices
- Cloud storage accounts
- Communication platforms
Third-Party Data
Address preservation of information held by:
- Vendors
- Contractors
- Cloud service providers
- Business partners
Consequences of Non-Compliance
Failure to properly implement a litigation hold can result in severe consequences:
- Monetary penalties
- Adverse inference instructions
- Default judgments
- Professional disciplinary actions
- Loss of credibility
- Dismissal of the case
For more detailed guidance, consider consulting: