Litigation Holds, Take 2

Once a litigation hold has been drafted, the next steps are to effectively issue, implement, and monitor the hold. These steps are equally critical to ensuring a litigation hold is successful. 

6.      How is an effective litigation hold notice issued?

·                     An effective litigation hold notice cannot be issued unless, and until, key personnel are identified and informed. This includes personnel in a company’s IT department who are responsible for overseeing the preservation of electronic documents. Also, designate one contact person for all preservation related questions. This ensures that information is provided to personnel in a consistent manner. 

·                     The litigation hold MUST be in writing! Many courts require that a litigation hold be in writing in order to be valid. Similarly, ask personnel to complete written acknowledgements, detailing receipt of the litigation hold notice, their understanding of the hold notice, and their agreement to comply with the hold notice. 

·                     When issuing the litigation hold, effective communication is key. Describe the litigation in general terms with understandable language, and avoid legal terms at all costs. Broadly state where relevant data and information could be located. Provide instructions on how to preserve relevant information. Finally, explain the consequences for non-compliance, particularly the importance of not destroying or altering relevant information.   

7.      How should the litigation hold process be maintained and reviewed? 

·                     A litigation hold is not static. It is a continuing obligation, of which personnel constantly should be reminded. Send reminder notices and encourage personnel to ask questions if any exist. Always consider whether new players or data is involved. Continually document the steps taken to implement and monitor the litigation hold. Depending on the situation, an entity may have a responsibility to utilize outside counsel to monitor the litigation hold process.        

8.      When and how should a litigation hold be released? 

·                     A litigation hold may be released when a party no longer is reasonably aware of the possibility of litigation. When releasing the hold, contact all parties who received the original litigation hold notice, and notify them that their obligations under the hold have ceased. At this time, any document destruction policies may be reintroduced. 

·                     Examples of when a litigation hold should be released include the withdrawal of a complaint, the completion of a deal, and the exhaustion of the appeals process. 

9.      Are litigation holds discoverable? 

·                     Normally, litigation holds are not discoverable. However, litigation holds can become discoverable if questions or concerns surround a party’s efforts to preserve relevant information. This is why documenting the litigation hold process is crucial.  

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