What Is a Litigation Hold Letter?

A litigation hold letter instructs owners of certain documents or electronically stored information (“ESI”) to keep safe relevant evidence in the event of a lawsuit sometime in the future. A litigation hold may also be referred to as a “preservation letter” or a “stop destruction request.” These letters essentially tell the receiver that a lawsuit might occur in the future. The documents and ESI they list should not be lost or destroyed, because they may be relevant to that future lawsuit. You might see both “Litigation Hold Letter” and “Litigation Hold Notice” used. Don’t worry, they mean the same thing. They both refer to the requests that adversaries send each other to force the preservation of documents, or evidence.

By: Brad Nakase, Attorney

Email  |  Call 888-600-8654

It has become more and more common for relevant evidence to be destroyed, especially in the case of digital files. Failure to preserve ESI complicate lawsuits, leading to increases in cost and time. Punishment for destroying relevant evidence involves “discovery sanctions.” Discovery sanctions might result in the following actions:

  • Certain facts must be taken as true
  • The disobedient party is prevented from supporting or disagreeing with certain claims
  • Pleadings will be partly or wholly dismissed
  • A default judgment will be issued against the disobedient party
  • Fines will be issued against the lawyers and/or clients
  • Evidence might be excluded

What If I Don’t Receive a Litigation Hold Letter?

Different events may trigger a party’s responsibility to preserve certain documents and ESI. A Litigation Hold Letter is an obvious directive, meaning it very clearly orders a party to keep safe certain information. When it’s in writing, there’s little doubt!

Sometimes, however, the instruction to preserve documents and ESI may be more subtle. For instance, management at a company may be talking about harassment or a hostile environment. There may also be a government investigation into an organization’s finances. Even when the threat of a lawsuit is only implied, or otherwise not clear, that threat may still trigger the responsibility to preserve information.

How Do You Respond to a Litigation Hold Letter?

 First, it is important not to delay action. Even a delay of a few days may result in the loss or destruction of relevant evidence. Down the line, this may lead to harmful discovery sanctions. You and your lawyer should immediately set about protecting the necessary data.

If you receive a Litigation Hold Letter from an opponent, you should also respond in writing, telling the other party the steps you are taking to preserve the required documents and ESI. If you feel that the scope of their request is too broad, you may say so in your letter. This communication may prove helpful in the event of a future lawsuit. It means that your adversary must defend the framework of their request.

Depending on the Litigation Hold Letter you receive, and its scope, it may be difficult to know what information could be called relevant. You may wonder if you should go to the trouble of preserving everything, just to be safe. Fortunately, the courts have said the responsibility to preserve information is not unlimited. You are not required to preserve every single paper or email. The burden is on the other party to be specific in asking for documents, and not just saying “whatever is relevant.”

In the event of a Litigation Hold Letter, all key members of the receiving organization should be notified. They should also be reminded of the potential consequences of inaction. Consider all sources of data, including email, text messages, hard drives, laptops, etc. It is essential to have a good understanding of your company’s data organization so that you will know the location of various documents and ESI.

We want to hear your story.

4 + 0 = ?

Understanding Discovery: Scope of Admissible Evidence

The term "Reasonably Calculated to Lead to Discovery of Admissible Evidence" defines the scope of permissible discovery in legal proceedings, focusing on information that could lead to trial-admissible evidence. The discovery process is applied liberally, allowing for a broad range of information, including hearsay, stipulated matters, and cumulative evidence, to be gathered.

Discovery Limitations in California

Learn the key restrictions on legal discovery in California with our concise guide on CCP-imposed limits. Learn how timing, scope, and protective orders shape the discovery process in California civil cases.

Right to Discovery in California: No Leave of Court

In California legal proceedings, most discovery procedures are available as a matter of right without requiring leave of court, except for certain sensitive matters such as physical and mental examinations, a defendant's financial condition in punitive damage cases, and a plaintiff's sexual history in sexual harassment cases, which require a court order.

Special Damages vs. General Damages: What’s the Difference?

General damages, including pain and suffering, loss of consortium, and emotional trauma, arise naturally from a wrongdoing and aren't quantified monetarily. In contrast, tort law's special damages, like car repairs or medical bills, are calculable and differ from general damages that lack a fixed cost.

Motion To Compel Arbitration

This article discusses the legal intricacies and procedures related to filing a motion to compel arbitration, covering topics such as tolling provisions, consolidation of arbitration proceedings, and appeals. The conversation provided a detailed overview of strategies for both enforcing and avoiding a motion to compel arbitration in various legal contexts.

Pleading the Fifth In A Civil Case

A defendant or witnesses in a civil case may plead the Fifth Amendment right against self-incrimination. The person pleading the fifth must show that there is a real possibility that the information sought can be use against them in a pending or future criminal case.

Mastering the Art of Trial Preparation: Trial Preparation Checklist

This article discusses strategies for legal teams, emphasizing meticulous evidence analysis, effective storytelling, and leveraging modern technology for case organization. It highlights the significance of detailed planning, from crafting compelling narratives to adopting trial prep software, ensuring every case aspect is methodically documented and presented.

Mastering the Courtroom: Essential Tips for Trial Lawyers

This article serves as tips for trial lawyers, offering valuable strategies for effective courtroom practice. It emphasizes the importance of meticulous preparation, persuasive communication, and strategic decision-making, especially when going to trial.

When does spousal privilege not apply?

Spousal privilege does not apply if 1) one spouse is charged with a crime against the other their children, 2) one spouse is suing the other, and 3) private communication between spouses is disclosed to other people.
By: Brad Nakase, Attorney

Of counsel

Of counsel is a title of a lawyer who has a close and continuous professional working relationship with a law firm that is not a partner or associate of the law firm.

Trustee and Beneficiary Conflict of Interest

A trustee has a conflict of interest when their interest conflicts with their responsibilities to the trust beneficiaries. A trustee may not put personal interest above the interest of the beneficiaries.

Fiduciary Responsibility Definition

A fiduciary responsibility refers to an organization that must put another person’s best interest first. A fiduciary duty is the highest standard of care in law. For example, a lawyer owes a fiduciary responsibility to the clients, a doctor owes a fiduciary duty to a patient, and a trustee owes a fiduciary duty to a beneficiary.

What Makes a Verbal Contract Valid

A verbal contract is valid when contractual elements are satisfied, such as evidence of an offer, acceptance of the offer, and consideration which is an exchange of value between the parties.

Is a Verbal Contract Legally Binding

A verbal contract is legally binding if it meets three requirements: 1) an offer was made, 2) the offer was accepted, and 3) there was a consideration which means something of value.

How to Enforce a Verbal Contract

To enforce a verbal contract, the verbal contract needs to be valid. The plaintiff must show that 1) an offer was made, 2) the offer was accepted, and 3) the plaintiff either paid money or took action that benefited the defendant.

152
© Copyright | Nakase Law Firm (2019)