This litigation hold letter checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy. Updated 8/25/10.
- State that litigation is underway (and cite case caption) or that litigation is now anticipated (state matter/claims expected).
- Explain duty to preserve information (see example letter, below).
- Recommend that client agree on one person who will take the lead in preserving all information potentially relevant to this matter.
- Perform sufficient investigation into client's filing and document systems and the likely scope and topics for discovery in the case so as to be able to effectively advise on scope of litigation hold.
- Recommend contact former employees to ensure that they understand the importance of preserving all potentially relevant evidence.
- Develop strategy for preserving electronically stored information, including consulting an IT specialist if necessary.
- List electronically stored information that client must preserve (see example letter, below).
- Recommend that, where reasonable and possible, recently deleted information should be recovered. Stone v. Lockheed Martin Corp., 2009 U.S. Dist. LEXIS 12105, 2009 WL 267688 (D. Colo. Feb. 2, 2009).
- Review document retention policies and suspend any automatic destruction or recycling policies for paper or digital files, digital back-up tapes, optical diskettes, or other storage media.
Thoughts & Best Practices:
- Discuss the general issue of a litigation hold at the earliest possible date, and issue the letter as soon as litigation becomes "reasonably clear." In a recent (January, 2010) order in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC by Judge Shira Sheindlin, a highly influential jurist in the field of e-discovery, a party was sanctioned for failure preserve electronic backup tapes after litigation was "reasonably clear," 10 months before a lawsuit was filed, even absent any finding of bad faith.
- Cross-reference the factual investigation plan and discovery plan when planning a litigation hold.
- While this checklist is intended for use in drafting a litigation hold letter to send to one's own client, it is also often appropriate to draft and send a litigation hold letter to the opposing party (this was the case in Stone v. Lockheed Martin, above). Sending a litigation hold letter to the opposing party may be helpful in the event you later seek sanctions for discovery violations or spoliation. While the tone and mechanics may be different, the content will be largely the same as listed above.
Example Litigation Hold Letter:
- Sample Litigation Hold Letter
Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
This litigation hold checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.