Litigation Hold Notices

The duty to preserve electronically stored information (“ESI”) and hard copy documents begins as soon as litigation is reasonably anticipated. Preservation requires immediate attention to protect relevant information that could otherwise be deleted or purged and also to prevent the loss of additional data as a result of routine deletion or destruction policies in place. Litigation Hold Notices, or Preservation Letters as they are often referred to, should be sent to custodians involved in the lawsuit at hand, as well as to opposing counsel and/or third parties that are or may become involved in the suit or that possess potentially relevant information.

Why Send Litigation Hold Notices

Although it is not required by law that Litigation Hold Notices be sent, it behooves you to do so for a number of reasons. First, the Litigation Hold Notice can set the agenda for the Rule 26(f) Conference as it provides the groundwork for discussions involving issues retaining data from certain sources or not reasonably accessible data. A Litigation Hold Notice should clearly spell out various data sources and types of ESI to be retained which opposing counsel may not have otherwise thought to preserve, thereby avoiding spoliation of such data. Additionally, if the Litigation Hold Notice clearly spells out what types of data should be retained and provides instructions on how to do so, you will be in a much better position to make a claim for spoliation in the event the evidence is later destroyed by your opponent.

What to Include in the Litigation Hold Notice

Often times, Litigation Hold Notices are sent before a formal complaint is served. Therefore, the letter should provide enough information about the facts of the case that opposing counsel will be able to determine what information is considered relevant and should be preserved. Include a list of the key individuals or custodians, relevant dates, major events, locations, products at issue, or any other pertinent information about the case. To avoid the destruction of potentially relevant materials, it’s best to provide as much detail about the case as you’re able to at this point.

The Litigation Hold Notice should clearly set forth all types of data that should be retained including electronically stored information (“ESI”), hard copy documents, software, hardware, etc. It is important to list examples of the various data types that fall within these categories, such as email servers, mobile devices, CDs, DVDs, flash drives, external hard drives, voicemails, databases, backup tapes, file servers, and a number of other various locations that should be spelled out in the notice. The notice should be tailored to the recipient whether it be your client’s custodians, opposing counsel or a third party with potentially relevant material. Be clear and specific about the types of materials to preserve and the various ways in which data should be retained.

In addition to clearly stating the types of data that should be preserved, you also need to be specific when describing the types of routine deletion or destruction methods that should be immediately halted to avoid spoliation of relevant information.

Keep in mind that preservation requests should be reasonable and not overbroad as requesting preservation of any and all data will likely not be well received by the recipient or by the court.

For more detailed information about preservation letters, see Craig Ball’s article, “The Perfect Preservation Letter”. Additionally, see Lexbe's Custodian Interview and Data Mapping Technical Notes.

Professional Services

Our Professional Services department can provide assistance with drafting Litigation Hold Notices for complex ESI and/or tailoring Litigation Hold Notices to your specific case needs. For questions or assistance, please contact Lexbe’s Professional Services department at professionalservices@lexbe.com.