This post covers a litigation hold letter.
The “litigation hold letter” became one of the most popular e-discovery tools in 2003. This trend can be traced back to United States District Court Judge Shira A. Scheindlin’s ruling in Zubulake v. UBS Warburg LLC – 217 F.R.D. 309 (S.D.N.Y. 2003), in which the court stated that if a party reasonably anticipates litigation, it must take special measures to preserve relevant electronic evidence.
A litigation hold letter’s purpose is to keep electronic evidence that may be important to pending litigation safe. It’s vital to understand when the need to preserve evidence arises, as well as what to preserve and how to preserve it.
Don’t worry here I will explain everything you need to know about the litigation hold letter including;
- What is a litigation hold letter?
- What if I disobeyed the litigation hold letter
- Your duties when you receive litigation hold letter
- How do you respond to a litigation hold letter?
- how long Do you Have to heed the Litigation Hold Letter
- litigation hold letter sample
let’s get started
What is a litigation hold letter?
A “litigation hold letter” is a legal instrument that requires an individual or corporation to preserve all documents, data, and information related to a pending legal action in which the person or company is involved.
It is also known as a “preservation order,” or “Litigation Hold Notice” and its sole goal is to keep all important pieces of evidence in the case secured and undamaged.
For example, if you are facing or you expect to face a divorce claim, your spouse’s attorney may send you a litigation hold letter for the purpose of ordering you to preserve all relevant electronic evidence (data, documents, and other records) that will be useful in his divorce claim against you.
The date he may request you to preserve includes
- Computer/network activity logs
- Digital recordings
- Internet files
- Computer drives
- Paper documents
- Medical records
- Police reports
- Photographs or videos
According to the Zabulake case (as cited above), a letter is not always required. Instead, when a claim or action is “reasonably expected,” the need to preserve evidence emerges. A litigation threat or any other “credible probability” of a claim could lead to litigation holds.
What if I disobeyed the litigation hold letter?
The courts may consider “destruction of evidence” if you got a litigation hold letter and opted to remove, erase, or destroy material that the other party could have used as evidence in your case.
You may be subject to legal liability and penalties, courts may exclude you from presenting specific types of evidence or bar you from participating in decision-making procedures. The courts may even order you to pay for the evidence you destroyed to be recreated.
Your duties when you receive litigation hold letter
To protect yourself from legal liability and penalties, read the letter carefully and get organized.
Determine what evidence you may have and, if necessary, how you will transmit it to the opposing party. An attorney can assist you in working with IT personnel and others to secure electronic data implicated in the hold order. Keep any important information in a safe place.
Consider responding to the letter requesting a hold.
Your lawyer can assist you in drafting a letter that outlines the actions you’re doing to preserve evidence and offers to take extra precautions if the other side can demonstrate that these measures are warranted.
If it is possible that the letter’s terms can be negotiated, the lawyer can help you with that.
How do you respond to a litigation hold letter?
If an adversary sends you a Litigation Hold Letter, respond in writing, detailing the steps you and your client are doing to uncover and preserve relevant evidence.
If you disagree with the terms or extent of the adverse party’s preservation request, express your dissatisfaction and offer to consider taking extra measures if the adverse party can demonstrate that the measures are legally necessary under the circumstances.
A response letter allows you to define the parameters of what you think is relevant to the issues in a future lawsuit, and it puts the burden of proof on your opponent to explain why those parameters should be expanded.
You may read some practical tips on how to respond to a litigation hold letter from Stephen J. Maddex, An associate lang Michener LLC here
In nutshell, In his article, Maddex provided three practice tips to help you respond to a litigation hold letter effectively, in case you have received one.
- Tip 1 do not panic
- Tip 2 Get Organized!
- Tip 3 Consider Writing Back
How long Do I Have to obey the Litigation Hold Letter
Until you receive formal confirmation (through email or letter) that the matter has been resolved, you must obey the Litigation Hold Letter and keep all necessary data.
Litigation hold letter sample
[attorney letter head]
Attn: Litigation Hold
Re: Preservation of Relevant Information
Dear [Addressee last name]
This is to notify you that [name of the plaintiff ] has filed a case in the [nae of the court] of the United States District Court suing for damages related to a contract signed on [date of contract].
The Federal Rules of Civil Procedure, apply to all actions filed in United States federal courts, including the one in the filled by our client.
Understand that according to the Federal Rules of Civil Procedure every party to a lawsuit has a legal obligation to preserve all evidence that may be relevant to the case, This includes the obligation to preserve all electronic evidence, such as emails, voice mails, texts, images that are connected to the incident.
This responsibility to preserve evidence is broad and applies to all types of materials, regardless of whether they are maintained electronically (through email) or in hard copy including reports, spreadsheets, pictures, and videotapes are all considered records that must be kept.
Furthermore, the obligation to preserve this relevant documentation includes all documents in existence at the time you reasonably expected this case.
We are certain that [name of the respondent] has already taken steps to protect this data since it has a legal obligation to do so. As a result, no methods of altering deleting, or fragmenting any active data, should have been implemented. Furthermore, no electronic information should have been discarded or destroyed. We also have faith in [name of the respondent] ability to keep such electronic data and paper files safe throughout the course of the dispute.
Please contact me if you have any queries concerning the details of these obligations.