Developing, drafting and implementing a litigation hold are critical to the e-discovery process. A litigation hold ensures that all relevant information is preserved and later helps to ensure that discovery can be responded to efficiently, accurately, and appropriately. Accordingly, a successful litigation hold reduces the possibility of sanctions during the e-discovery process.
This first post on litigation holds, provides answers to questions about the beginning of the litigation hold process. The second post, will more thoroughly address the actual implementation of the hold.
1. What is a litigation hold?
· During a litigation hold, parties to the litigation preserve, keep, and store potentially relevant information. Parties also must suspend any document destruction policy they follow, for both printed and electronic documents.
2. When should a litigation hold be issued?
· A litigation hold should be issued when a party is reasonably aware that it will be a party to litigation. For a plaintiff, triggers could include filing a complaint, seeking advice of counsel, or sending a cease and desist letter. For a defendant, triggers could include receiving a summons or complaint, receiving official notice of a government investigation, or receiving notice of an accident, receiving discovery requests.
3. Are litigation hold policies and practices necessary?
· Yes! Before litigation even arises, it is necessary to implement litigation hold policies and train employees on those policies. Have a process, follow the process, implement the process, and document the process!
4. What types of issues should be identified before issuing a litigation hold notice?
· First, a party needs to identify types of electronically stored information that could contain relevant information. Types of electronically stored information range from data stored on computers (laptops and desktops), to cell phones, to personal data devices (Blackberries, Iphones, etc.), to voicemails. A party also must identify where this data physically is stored and whether the data has multiple storage locations.
· Second, a party needs to identify the players. Players are any individuals who might have been a witness to a relevant event, or individuals who otherwise were exposed to information surrounding a relevant event. Always consider whether the individuals surrounding key players, especially secretaries and assistants, would have relevant information.
5. How should the litigation hold process be developed?
· Parties can freely decide how to collect relevant data. In considering the scope of the litigation hold, there are many factors to consider such as the: cost to gather data; number of key players involved; locations of players involved, need to secure an outside expert; location of data; types of data; and accessibility of the data.