The "Dos" and "Don'ts" of Litigation Hold Notices: Deconstructing the Effective Litigation Hold Notice
The “Dos” and “Don’ts” of litigation hold notices were discussed at the Fifth Annual Gibbons E-Discovery Conference on November 3, 2011. The distinguished panel included the Honorable John J. Hughes, U.S.M.J. (Ret.), the Director and Chair of the firm’s E-Discovery Task Force Mark Sidoti, and Melissa DeHonney, an associate in the Gibbons Business & Commercial Litigation Department and member of the firm’s E-Discovery Task Force. The panel’s PowerPoint presentation, which includes a model litigation hold notice, can be found here.
The panel discussed the anatomy of a good litigation hold letter and walked the audience through best practices for drafting each section. Most importantly, the panel stressed that there is a difference between using a “template,” which is then tailored for a particular case, versus a boilerplate form letter, which is never appropriate. The panel emphasized the importance of recognizing that the target audience may not be familiar with legalese. Some other essentials that the panel discussed include:
- identifying an appropriate contact source that custodians can turn to;
- making sure the hold is directed to the proper recipients;
- tailoring the preservation instructions to fit the client’s information technology structure;
- requiring recipients to acknowledge that they received and will comply with the hold;
- and including an explanation of why preservation is important and the consequences of failing to preserve
It was discussed that preservation does not end with a good litigation hold letter, but that consistent follow-up is also required to effect the ultimate purpose of the litigation hold. The panel noted that this is an evolving process which may require an additional litigation hold with revised and/or new categories.
This panel moved beyond the nuts and bolts of drafting litigation holds and discussed their standing in current case law, including the consequences of a failure to issue a written litigation hold, the discoverability of litigation holds and the exceptions to the “privilege” that might otherwise attach to them. Recognizing that no party’s preservation efforts are ever going to be perfect when judged after the fact, the panel recommended that litigants should always be prepared to explain why their preservation efforts were reasonable when undertaken and maintain a solid contemporaneous record of what they are doing to preserve documents.
Elizabeth Ann Fitzwater is Counsel to the Gibbons E-Discovery Task Force.