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Save Those Files! The Significance of a Litigation Hold Notice

By January 8, 2020August 5th, 2021No Comments

Many business owners learn early on that disputes are inevitable and can sometimes lead to litigation. Once it appears that litigation is reasonably certain to occur, certain steps should immediately be taken to preserve information relevant or potentially relevant to the dispute. This is typically accomplished by sending a written litigation hold notice to key individuals within an organization advising that certain documents and electronically stored information must be preserved. Such hold notices help to ensure that relevant information does not slip through the cracks or get inadvertently deleted.

Illustration of 5 files with locks in the bottom right cornerCrafting a Litigation Hold Notice

The hold notice should be short and simple.  You do not want the recipient to be confused as to what exactly is being asked of them. That said, every hold notice should contain at least the following information:

  • Introduction: Explain why you are sending the litigation hold so that the recipients understand the importance of the request and are better able to identify relevant information.
  • Materials to be Preserved: The hold notice should include specifics such as the nature of the dispute, the relevant time period and a description of the necessary information. It should also clearly identify what types of materials must be preserved, including, but not limited to, paper files, emails, or text messages.
  • Retention Instructions: The notice should be delivered to key employees who have knowledge of the issues in the dispute, and also to relevant personnel who can suspend normal retention procedures.
  • Compliance: Advise that preservation is mandatory, and that failure to comply may reduce the company’s ability to pursue its claims or prepare its defense.
  • Confidentiality: If the request is within your own organization, emphasize the confidential nature of the dispute and the expectation that employees will not discuss it with each other or outside the company. The goal is to decrease discoverable communications by employees who may inadvertently make statements that may be detrimental to the company.
  • Duration of the Litigation Hold: The notice should state that individuals are required to preserve all relevant information until they are notified that the hold has been released.
  • Contact Information: The notice should provide the name and contact information for the person designated to answer questions about the litigation hold.
  • Receipt and Acknowledgment: Require recipients to send a written response confirming that they have read the notice and will comply with its requirements.

In sum, a hold notice should include at least the above information and should be drafted in a clear and comprehensive manner. It will serve as the means for proper compliance with document preservation requirements. If the hold notice is not timely sent or not appropriately followed, the company may be unable to prosecute its claims, prepare a sufficient defense, and even be subject to discovery sanctions for failing to preserve relevant evidence. Therefore, it is advisable to speak with an attorney to ensure compliance.

This article is meant to be utilized as a general guideline for litigation hold notices. Nothing in this blog is intended to create an attorney-client relationship or to provide legal advice on which you should rely without talking to your own retained attorney first.  If you have questions about your particular legal situation, you should contact a legal professional.

Cindy Menta is an Associate Attorney attorney at Gertsburg Licata. Her practice is focused primarily on real estate transactions and commercial litigation. She can be reached at [email protected]

Gertsburg Licata is a full-service, strategic growth advisory firm focusing on business transactions and litigation, M&A and executive talent solutions for start-up and middle-market enterprises. It is also the home of CoverMySix®, a unique, anti-litigation audit developed specifically for growing and middle-market companies.

This article is for informational purposes only. It is merely intended to provide a very general overview of a certain area of the law. Nothing in this article is intended to create an attorney-client relationship or provide legal advice. You should not rely on anything in this article without first consulting with an attorney licensed to practice in your jurisdiction. If you have specific questions about your matter, please contact an attorney licensed to practice in your jurisdiction.

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