Legal Holds

The Role of 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 to prevent the loss of additional data because 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 several 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 preserved which opposing counsel may not have otherwise thought to maintain, 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.

Rely on the Experts for Drafting Litigation Hold Notices

Our Professional Services Team consists of CEDS certified litigation paralegals and lawyers that are experienced at drafting legal hold notices for custodians, opposition, and third parties involved in all types of matters.

Litigation Hold Notices are frequently 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.

Lexbe eDiscovery Specialists will collaborate with you on the development of all the critical components and details needed for the litigation hold notice, including:

  • Key Individuals & Custodians

  • Relevant Dates

  • Major Events

  • Locations

  • Products at Issue

  • Pertinent Case Information

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Preserve the Relevant Data for Your Case

Our eDiscovery Specialists will draft the litigation hold notice to 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 other various data sources. The notice will 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, we’ll also be specific when describing the types of routine deletion or destruction methods, that are often in place due to data governance programs, that should be immediately halted to avoid spoliation of relevant information.

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If you have questions about crafting litigation hold notices or any other litigation related issue, we’d be happy to schedule a complimentary consult call.

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