The recent amendment to Federal Rule of Civil Procedure 37(e) makes clear that document preservation is not something to be taken lightly. Issuing a litigation hold notice is the first, crucial step in the preservation process. A litigation hold notice is a document, usually sent by counsel, that alerts individuals likely to be in possession of documents or other materials potentially relevant to a dispute of their obligation to retain those materials. Notably, the issuance of a litigation hold expressly suspends the protocols of any record retention policies (and a good record retention policy should expressly provide for this possibility).
Although there is no “one size fits all” document, a good litigation hold should include, at minimum: a description of the matter (including the relevant time period), a description of the substance of the data to be preserved, a description of the types of data to be preserved (papers, e-mails, electronic documents, etc.), an explanation of the obligation to preserve and the consequences for failing to do so, an express directive to cease any document destruction, instructions who to contact with any questions, and an acknowledgement that the individual has read, understands and agrees to be bound by the hold. The exact contours of the hold notice should be tailored to the individual case and entity.
Litigation holds are typically issued early in the litigation process—frequently before a complaint is even served. In protracted litigation, consider re-issuing the hold periodically for the life of the action. Each time the notice is re-issued, consider whether the scope of the initial hold notice has changed as additional facts have developed. Also, assess whether any additional individuals should be added to the hold. In addition to individuals who are likely to have substantive documents in their possession, a separate litigation hold notice should also be sent to the IT staff responsible for system maintenance and any scheduled purges. This often overlooked step is critically important and will be one of the first questions asked in the event a preservation issue arises.