While monitoring your work email, you receive a message that puts a pit in your stomach. Your company’s General Counsel has sent you a “Litigation Hold Notice,” advising you that your emails, documents, and communications must be preserved. What does this mean? What do you need to do? Here are the basics on litigation hold notices, and a few simple tips on how to proceed once you receive one.
Why Did I Receive a Litigation Hold Notice?
When your employer learns that either: (1) it is a party to a lawsuit; or (2) it has reason to anticipate future litigation, it has a duty to preserve documents that may be relevant to that litigation. This preservation of documents is achieved by sending a litigation hold notice to all employees who may possess such information, including documents, emails, communications, and any other electronically stored information (ESI).
You received the litigation hold notice because your employer believes that you may possess relevant documents and ESI. It does not mean that you have done something wrong or unlawful. Perhaps a project that you worked on resulted in litigation for breach of contract. Perhaps you served as supervisor for an employee who has threatened to sue the company for wrongful termination. Or maybe you are responsible for recordkeeping or managing important company documents that will be needed in a lawsuit. All of these situations may lead to you receiving a litigation hold notice.
Read the Litigation Hold Notice
It should go without saying, but make sure you carefully read the entire litigation hold notice. Your company’s General Counsel or outside litigation counsel should provide instructions on what to do, and how to preserve the documents. The notice should also provide a relevant time-period for preservation, i.e., the last two years.
Talk to Your Employer’s IT Department
If you’re not technologically savvy, or don’t understand the instructions in the litigation hold notice, you should speak with someone in your employer’s IT department. They should be able to provide you with instructions on how to preserve the ESI, including imaging any electronic devices (including laptops, tablets, and cell phones) or electronic accounts (including email, shared drives, or group messages, such as Teams or WhatsApp).
Don’t Delete Anything
This also should go without saying, but once you’ve been told to preserve documents and ESI, do not delete anything! Be sure to check your desktop for any documents that may have been saved locally and are not preserved on your employer’s server. Do not delete any emails, drafts, documents, or communications. If you have an auto-delete setting on your cell phone or computer, turn off that auto-delete function so that all information is preserved. Do not throw away any hard copies of documents, either. If you maintained a paper file that is relevant to the litigation, that should be preserved as well.
There is good reason to save anything that is potentially relevant to a lawsuit. If you don’t, your company may be accused of spoliation of evidence. Spoliation carries heavy penalties in litigation, including the imposition of monetary sanctions against the party who fails to preserve documents, and potentially an adverse inference at trial. An adverse inference is an instruction that tells a jury to assume that any missing documents contain information that is damaging to the party who failed preserve them.
Check Your Personal Email and Phone Too
It is also a good practice to check your personal devices for relevant documents. Perhaps you forwarded a work email to your personal account. Maybe you sent text messages from your personal cell phone to co-workers which relate to the litigation. You want to ensure that this information is preserved, even if not explicitly subject to the litigation hold notice.
The preservation of documents is a generally routine but important first step in the litigation process. It may very well be all that you are asked to do in connection with the lawsuit. If you do happen to possess highly relevant documents, you may be asked later for a deposition. But don’t panic about that either—we’ve got tips for that, too.