Understanding Litigation Hold Notices: A Crucial Element in Legal Proceedings

Understanding Litigation Hold Notices: A Crucial Element in Legal Proceedings

Litigation plays a pivotal role in the legal world, especially when disputes are imminent or ongoing. One of the most critical tools in this process is the litigation hold notice. Also called a legal hold or preservation order, it is a formal communication that instructs organizations and custodians of records to preserve all relevant documents and data related to a legal case.

This proactive step is essential to ensure evidence remains intact. It prevents the destruction, loss, or alteration of crucial information that could affect the outcome of litigation.

What Is a Litigation Hold Notice?

A litigation hold notice is a written directive issued by legal counsel to individuals or organizations who possess potentially relevant records. It informs them of their obligation to preserve all evidence that may be needed for a current or future lawsuit.

This evidence can include:

• Physical documents

• Emails

• Text messages

• Photographs and videos

• Voicemails

• Calendars

• Data stored on personal devices, collaboration platforms, cloud storage, or social media

Litigation hold notices are sometimes called “preservation letters” or “stop destruction requests.” Their purpose is to prevent spoliation of evidence—the intentional or accidental destruction of material relevant to the case.

The practice of issuing litigation hold notices gained traction after several New York federal court cases highlighted the need to preserve key records during the discovery phase of litigation.

Key Components of a Litigation Hold Notice

1. Identification of Relevant Information

The notice must clearly outline what information should be preserved. Legal teams work with clients to identify critical records and specify where they may exist. This could include email servers, mobile devices, file cabinets, or cloud accounts.

A well-written notice is simple, direct, and easy to follow, which helps avoid confusion or misinterpretation.

2. Communication to Key Personnel

The notice is usually distributed to essential staff, such as IT professionals, records managers, and department heads. Organizations must also track custodians who leave the company during the litigation hold period to ensure compliance.

3. Clear Instructions and Timelines

Strong litigation hold notices provide step-by-step instructions and timelines. They explain exactly what must be done and when. If a notice is not issued promptly, courts may treat the failure as negligence and assume the destroyed evidence was important to the case.

4. Documentation and Reporting

Organizations must document their compliance efforts. Detailed reports should track which evidence was preserved, how it was safeguarded, and any difficulties encountered. Proper documentation demonstrates good faith and helps avoid sanctions.

Why Litigation Holds Are Important

1. Preservation of Evidence

The primary purpose of a litigation hold is to ensure that potentially relevant evidence remains intact. This guarantees both sides of a case have equal access to the information.

2. Compliance with Legal Obligations

Ignoring a litigation hold can lead to severe consequences. Courts take spoliation of evidence very seriously, and non-compliance may result in sanctions, monetary penalties, or adverse rulings against the offending party.

3. Risk Mitigation

Issuing and enforcing litigation holds promptly helps organizations reduce the risk of legal penalties. It also shows the court that the organization is acting responsibly and in good faith.

Final Thoughts

In today’s complex legal environment, litigation hold notices are essential for preserving fairness and transparency in court proceedings. Organizations must act quickly, communicate clearly, and document their preservation efforts to comply with legal obligations and avoid penalties.

By taking litigation holds seriously, businesses and individuals contribute to a just and efficient resolution of disputes. Staying informed about their importance helps organizations navigate potential legal challenges with confidence.

ⁱStephanie F. Stacy, Litigation Holds: Ten Tips in Ten Minutes, United States District Court District of Nebraska (July 2010),https://www.ned.uscourts.gov/internetDocs/cle/2010-07/LitigationHoldTopTen.pdf.

ⁱⁱ Id.

ⁱⁱⁱSterling Miller, Litigation holds: What in-house counsel needs to know, Thomson Reuters (Sept. 19, 2022), https://legal.thomsonreuters.com/en/insights/articles/litigation-holds-what-in-house-counsel-need-to-know.

^ivTracee Davis, Constance M. Boland & Adam I. Cohen, Best Practices in E-Discovery in New York State and Federal Courts, E-Discovery Committee of the Commercial and Federal Litigation Section of the New York State Bar Association (Apr. 5, 2013), https://nysba.org/app/uploads/2020/02/Ediscovery_Final5.2013.pdf.

^v Zubulake v. UBS Warburgh LLC, 220 F.R.D. 212 (S.D.N.Y. 2003).

^viDavis, Boland & Cohen, supra note iv.

^viiMiller, supra note iii.

^viiiId.

^ixVoom HD Holdings LLC v. Echostar Satellite LLC, 93 A.D.3d 33 (1st Dept. 2012).

^xMiller, supra note iii.

^xiFed. R. Civ. P. 37(e).

^xii See Richard Reice, The Tyranny of the Litigation Hold, New York State Bar Association, 21 NYLitigator, no. 1, 2016, at 19; see also Ortega v. City of New York, 9 N.Y.3d 69, 76, 845 N.Y.S.2d 773, 776 (2007).